Randall v. N. W. Tel. Co.

• Decision Date: 10 January 1882
• Citation: 11 N.W. 419,54 Wis. 140
• Parties: RANDALL AND ANOTHER, EX'RS, v. N. W. TELEGRAPH CO.
• Court: Wisconsin Supreme Court

54 Wis. 140

11 N.W. 419

RANDALL AND ANOTHER, EX'RS,

v.N. W. TELEGRAPH CO.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Chippewa county.

Meggett & Teall, for respondent.

L. M. Vilas, for appellant.

TAYLOR, J.

This action was brought by Thomas E. Randall, in his lifetime, to recover damages for an injury occasioned, as he alleges, by the carelessness and negligence of the appellant company in not keeping in proper repair their telegraph line in the county of Chippewa; that by reason of such carelessness and negligence the wire of said line became loosened from the poles and fell across a public highway in the town of La Fayette, in said county, and that while the said Randall was traveling along said highway with his horses and carriage, without any fault on his part, his carriage became entangled in the wire which had so fallen across said highway, and was overturned and damaged, his horses became frightened and unmanageable, he was thrown from the carriage and was thereby permanently injured. The complaint also alleges that the appellant company had, previous to the accident, abandoned the use of said telegraph line, and had negligently and wrongfully failed to remove the poles and wire, as required by the statutes in such cases provided. The answer denies any negligence on the part of the company, and alleges that the injury received by the said Randall, his carriage and horses, was caused by his own negligence and carelessness, and not by the carelessness and negligence of the said company, its agents or employes.

The action was tried at great length in the circuit court, and many exceptions were taken to the introduction of evidence on the part of the plaintiff, as well as to the instruction of the court to the jury. The first three exceptionsare taken to the introduction of evidence tending to show that the telegraph line of the defendant had been out of repair at other places along the highway, some distance from the place where the plaintiff was injured, and some time before the injury took place. We are not prepared to say that there was any error in admitting this evidence, so far it was limited to proof of the fact the wire and poles were down at the times and places mentioned by the witnesses. It was probably inadmissible for the purpose of showing that other persons had suffered injury from the fact of the falling of the poles or wire, but the fact that the poles and wire were down at other places and times within a few miles of the place, and within a few months of the time when the plaintiff was injured, would seem to us competent proof upon the question of the negligence of the company in maintaining the line in a safe condition. A line of telegraph constructed along a highway in such manner that if the wires become loosened from the poles, or the poles become decayed and fall, such highway will be obstructed and rendered dangerous to persons traveling thereon, should be so constructed and maintained as to prevent such occurrences except when produced by unusual storms or other casualties, which are out of the ordinary course of events. The fact, therefore, that the poles and wires were frequently down and obstructing the highway, although not at the time or place where the accident happened, was competent evidence, tending to establish the negligece of the company in not maintaining a safe line along such highway. The fact that the evidence related to a time a few months before the accident, or a place a few miles distant therefrom, would render the proof less conclusive than though it had related to a time a few days before the accident, or a place very near, but it would not affect the competency of the proof.

As we have concluded that the judgment must be reversed because of the error of the court in admitting in evidence the telegram of Haskins to Ginty against the objection of the appellant, and for error in the instructions given to the jury, as hereinafter stated, and because the death of Randall will render the questions raised upon most of the medical testimony immaterial upon a new trial, we have concluded not to consider them upon this appeal.

The plaintiff offered in evidence the following telegram from Mr. Haskins, the superintendent of the appellant company, viz.:

“ To Gen. George C. Ginty: Many thanks for your kind words for us to the gentlemen who were hurt by our old wire. I hoped to be with you to-morrow and see them, but I must go home. Have them make a bill and send me. We will pay any reasonable bill. My instructions, if obeyed, would have prevented the accident, but the repair-man neglected his duty, and we must pay the penalty. Answer.

+------------------------------------+
                ¦[Signed]¦C. H. HASKINS, Gen'l Supt.”¦
                +------------------------------------+
                

This telegram was sent October 20, 1879, and the accident took place August 25, 1879.

The introduction of this evidence was objectcd to by the appellant upon two grounds: First, because it was “secondary evidence, and not the original dispatch;” and, second, because it was “incompetent, irrelevant, and immaterial.” The objections were overruled and the appellant duly accepted. It is clear that this telegram was not a part of the res gestœ, and its admission as original evidence against the defendant can only be sustained upon the ground that the admission of the general agent or superintendent of the company bound the company. In the absence of any proof showing that the superintendent was authorized by the company to bind it by his admissions, we do not think the court was justified in assuming that he had such power. He was a competent witness for the plaintiff, and though holding a high position as an agent of the defendant, he was still only an agent, and for the purpose of admitting away the rights of the defendant he cannot be presumed to have all the powers of the corporation.

The inadmissibility of this evidence is fully established by the following cases cited by the learned counsel for the appellant, and upon well-established principles of law: Mil. & Miss. R. Co. v. Finney, 10 Wis. 388;Betts v. Farmers' L. & T. Co. 21 Wis. 80;Livesley v. Lasalette, 28 Wis. 38;Hazleton v. Union Bank, 32 Wis. 34;Richards v. Noyes, 44 Wis. 609;Rounsavell v. Pease, 45 Wis. 506;Austin v. Austin, Id. 523; Packet Co. v. Clough, 20 Wall. 540; 2 Wharton, Ev. §§ 1090, 1174-6; 2 Thompson, Neg. 848, note 7. These cases show that the rank or station of the person making the admission does not affect the question of its admissibility. In Hazleton v. Union Bank the admission of the president of the bank was held inadmissible. In Packet Co. v. Clough it was held that the admission of the captain of the boat could not be admitted. The authority to make the admission for the principal or corporation is not to be inferred from the position or rank of the party making the same. If such authority is alleged to exist, it must be shown by competent proofs.

It is not strenuously insisted on the part of the learned counsel for the respondent that the telegram was competent evidence for the plaintiff; but he insists that it should not be held sufficient ground for a reversal of the judgment-- First, because it was supposed on the trial that the exception was not to the substance of the telegram, but to its secondary nature, not being the original telegram sent. It seems to us very clear the exceptions cover both grounds, and as we are clear the evidence was improperly admitted over the objection to its incompetency, it is unnecessary to determine whether or not the objection taken on the ground of its being secondary evidence was well taken. This evidence was of a character which, if held admissible to bind the defendant, would necessarily have great weight with the jury in the determination of the question of the defendant's negligence, and it would be difficult to cure the error of its admission even by the most clear and positive withdrawal of the same from the consideration of the jury, and a clear direction that they should exclude the same from their consideration in determining the question of the defendant's negligence.

The learned counsel for the respondent insists that this evidence was withdrawn from the consideration of the jury by the circuit judge in his instructions, at least in part, and that there was so much other...