Roberts v. Wis. Tel. Co.

• Decision Date: 14 October 1890
• Citation: 46 N.W. 800,77 Wis. 589
• Parties: ROBERTS v. WISCONSIN TEL. CO.
• Court: Wisconsin Supreme Court

77 Wis. 589

46 N.W. 800

ROBERTS

v.WISCONSIN TEL. CO.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Dane county.

Finches, Lynde & Miller, for appellant.

Lewis, Pfund & Briggs, for respondent.

COLE, C. J.

This is an action for personal injuries. It appears from the complaint that the plaintiff was riding with another man in a buggy along the highway, which was almost perfectly level, and without any banks, borders, ditches, or rough or uneven places, or obstructions of any kind in it, except telephone poles, which were set in the highway 11 rods apart, and about 4 or 6 feet south from the fence on the north side thereof. There were three traveled tracks about equally used by the public for traveling. The track on the north side of the highway was about 8 feet from the fence on the north side of said highway, and about 3 feet from the telephone poles. The team was traveling on this north track, and it is alleged the horses were gentle and tractable, and were under the control of the driver when they were stopped to enable the plaintiff to get out of the buggy. While in the act of alighting from the buggy the horses were frightened by a team coming from behind, and ran along the highway coming in collision with a telephone pole, and the plaintiff was thrown forward from the buggy, in which he had regained his seat, and was endeavoring to stop the horses, and sustained the injuries of which he complains. Now, does the complaint state a cause of action? It appears to us that it does not. The only act of negligence complained of on the part of the defendant is the placing of telephone poles in the highway where they were set. These poles, as we have stated, were set from four to six feet from the fence on the north side of the highway, which would leave just room enough to permit the cross-arms on the poles to be entirely over the highway. Was it lawful to place these poles in the highway? The statute authorizes any corporation formed to build and operate telegraph lines or conduct the business of telegraphing to construct and maintain its lines, with all necessary appurtenances, along a public highway. Section 1778, Sanb. & B. Ann. St. And in Telephone Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. Rep. 828, it was held that the statute included telephone companies, although such companies were not specifically mentioned therein. The poles then were not unlawful structures in the highway, but were authorized by law to be set therein. It is true the statute in effect declares that no telephone line or any appurtenance thereto at any time obstruct or incommode the public use of the highway....