Simon v. The Missouri & Kansas Telephone Company

• Decision Date: 08 January 1916
• Docket Number: 19,795
• Citation: 97 Kan. 42,154 P. 242
• Court: Kansas Supreme Court
• Parties: J. S. SIMON, Appellee, v. THE MISSOURI & KANSAS TELEPHONE COMPANY, Appellant

154 P. 242

97 Kan. 42

J. S. SIMON, Appellee, v. THE MISSOURI & KANSAS TELEPHONE COMPANY, Appellant

No. 19,795

Supreme Court of Kansas

January 8, 1916

Decided, January, 1916.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Sagging Telephone Wire--Electric Storm--Horses Killed by Lightning--Proximate Cause. The defendant maintained a telephone line consisting of one wire supported on poles placed at the side of a public highway close to a hedge. At one place the wire sagged to within four feet of the ground. Plaintiff who was traveling with a team and wagon, stopped at noon to rest and turned his horses out to graze on the road. A storm came up and the horses went to the side of the road close to the hedge for shelter. While standing under the wire where it sagged they were killed by lightning which first struck one of the poles 150 feet distant. The telephone wire was not in itself dangerous to persons or animals using the highway for ordinary purposes of travel, and even though it were held negligence to maintain the wire so close to the ground, it was not the proximate cause of the injury. That required a conjunction of conditions and circumstances of an extraordinary nature which it is not reasonable to say a person of ordinary prudence and foresight should have anticipated.

D. E. Palmer, and J. W. Gleed, both of Topeka, for the appellant.

Sullivan Lomax, of Cherryvale, for the appellee.

OPINION

PORTER, J.:

Plaintiff had two horses killed by lightning which he alleged was communicated to them by a telephone wire negligently maintained by defendant in a public highway. He recovered judgment for the value of the horses, and defendant appeals.

The plaintiff is an itinerant horse trader. On May 5, 1913, he was traveling with his family in a covered wagon from Cherryvale to the northern part of the state, and while passing through Franklin county, stopped at the side of a public road for rest and dinner. He had four horses, which he turned out to graze along the highway, having them hobbled to prevent their getting beyond control. At the west side of the public road, and next to a hedge, the defendant maintained a telephone line of one wire, which sagged to within about four feet of the ground. While plaintiff's horses were grazing at the side of the road, a storm came up and the horses went close to the hedge for shelter. Two of them were standing under the sagging wire and were killed by a stroke of lightning. Plaintiff testified that the horses fell at the instant of the flash, and that the lightning first struck a telephone pole 150 feet from where the animals were and was conveyed to them from the telephone wire. He admitted on cross-examination that this was his conclusion from the circumstances; that immediately after the storm he discovered fresh splinters and pieces of the pole lying on the ground.

One defense pleaded in the answer was that the horses were running at large on the public highway, contrary to the herd law which it is admitted was in force in Franklin county. The principal contention is, that no negligence was shown on the part of defendant which was the proximate cause of the plaintiff's loss. These defenses were raised by demurrers to the petition and to the evidence, and by a motion for a new trial.

Wholly apart from the question whether plaintiff's horses were running at large in violation of the statute, we think the judgment can not be permitted to stand. Manifestly, the fact that defendant is a corporation has nothing to do with the question of its liability for the injury. If the wire through which the stroke of lightning was transmitted to the horses had been a private telephone wire maintained at the roadside by a farmer, or had been part of his wire fence along the highway, his liability for plaintiff's loss would be determined upon precisely the same legal principles. Telephone and telegraph wires carry very light voltage and can ordinarily be handled with as little danger as a fence wire. Either may furnish, as may water pipes, gas mains etc., a conductor for lightning; but before the plaintiff can recover he must show some negligence of the defendant which was the proximate cause of his loss. The telephone wire was not...