Sheffield v. Central Union Telephone Co.

• Citation: 36 F. 164
• Parties: SHEFFIELD v. CENTRAL UNION TELEPHONE CO.
• Decision Date: 01 January 1888
• Court: U.S. District Court — Northern District of Ohio

36 F. 164

SHEFFIELD v. CENTRAL UNION TELEPHONE CO.

United States Circuit Court, N.D. Ohio, Eastern Division.

April Term, 1888

Boynton & Hale and E. G. Johnston, for plaintiff.

D. J Nye and Henderson, Kline & Tolles, for defendant.

WELKER J., (orally charging jury.)

To maintain this action the plaintiff must establish substantially the negligence charged against the defendant and that such negligence produced the injury. It must also be shown in the whole evidence that the plaintiff did not by her own carelessness and negligence contribute to the injury; and if it appear that the defendant was guilty of the negligence charged against it, yet, if the plaintiff was herself guilty of such negligence as that the injury would not have occurred without that carelessness and negligence on her part, then the plaintiff is not entitled to recover.

The first question is as to the negligence of the defendant. That depends upon the rights given to the defendant to use jointly with the public, a part of the highway. The statutes of Ohio provide that the telephone company might occupy for its poles a part of the public highway, but must not do it so as to incommode the public in the use of the highway. In the location of its poles in the highway the defendant was required to exercise reasonable care, so as not to incommode persons having a right to use the road for all purposes of travel. This use means the ordinary and reasonable use of the highway for all purposes for which highways are usually used by the public. It was not required to so locate its post or pole as to provide against all possible injuries that might be incurred or happen under extraordinary circumstances. Then ascertain the location of the pole, and find whether it did so inconvenience the public, and make such location careless and negligent. The plaintiff had a right to the use of the highway for purposes of travel without being incommoded by the pole of the defendant, located in the public highway. She was required to use ordinary care and diligence, in passing along the road, to avoid collision with the pole located therein. Ordinary care means such care as a person of ordinary prudence would or should exercise to avoid injury. What is ordinary care depends upon the circumstances surrounding the parties at the time, and upon the situation and location and the place of injury, whether the obstruction complained of was within the...