Southwestern Telegraph And Telephone Company v. Bruce

• Decision Date: 15 March 1909
• Citation: 117 S.W. 564,89 Ark. 581
• Parties: SOUTHWESTERN TELEGRAPH AND TELEPHONE COMPANY v. BRUCE
• Court: Arkansas Supreme Court

117 S.W. 564

89 Ark. 581

SOUTHWESTERN TELEGRAPH AND TELEPHONE COMPANY v. BRUCE

Supreme Court of Arkansas

March 15, 1909

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

This was a suit instituted by the appellee, who was plaintiff below, against appellant, in which he alleged that the defendant had negligently erected and strung its telephone wires across a street and over certain vacant lots in the city of Fort Smith in such a manner as to endanger persons thereon; that the wires had become detached from their fastenings by reason of having been negligently strung and maintained, and that the plaintiff had come in contact therewith; that the telephone wire had come in contact with a wire of the street railway, and had thereby become charged with electricity, as a result of which plaintiff was severely burned about his hands, arms and body, disabling him for a great length of time and permanently injuring his fingers and hand.

The defendant in its answer denied that its wires were negligently strung and maintained, and that they were dangerous to persons on said streets or lots; denied that the wire had become detached from its fastening on account of any negligent manner in which it was strung and maintained, and denied the other material allegations in the complaint. It alleged that its wires were located and maintained and operated in a skillful manner, and further pleaded contributory negligence on the part of plaintiff.

The evidence upon the part of plaintiff tended to show that the defendant had stretched two of its wires from a pole located on North 16th Street, in the city of Fort Smith, across the street and thence across three vacant lots, and across an alley to a house located upon North F Street; that the wires were attached to the pole on North 16th Street, at a height of about 24 feet from the ground, and were strung without any further support to the house on North F Street, a distance of 330 feet, where they were attached at a height of about 18 feet from the ground; that the wires were so strung as to cross over the trolley line of the street railway; that this trolley line was heavily charged with electricity, and that there were no guards or other mechanism to protect the telephone wires from the trolley wire; that this telephone wire was thus erected on May 23, 1907, and the accident complained of occurred on the 26th day of June, 1907. Plaintiff was a carpenter, and on June 25th, in connection with two other carpenters who were working under him, began the erection of a barn on the vacant lots. About ten o'clock of the morning of June 26th, they had raised some outside studding on the barn, and put one joist on that end thereof. This telephone wire ran through the barn, and the place where the barn was located was midway between the telephone pole on North 16th Street and the house whereon the telephone wires were attached, and the wires at this place were about nine or ten feet from the ground.

While these two men were working on the barn, one of the wires was lying on top of the joist, and one of the men stood the ladder up and threw the wire on the outside of the joist, and before he got upon the top of the ladder the wire broke and each end sprung back, one of the ends falling upon the foundation of a house which was being erected upon the vacant lots several feet from the barn. This workman claimed that he did not strike the wire with any hammer or other instrument but that he did not know whether the ladder hit the joist or whether it hit the wire; that the wire broke out from the barn, but he did not know how far; that the joist was about fourteen or fifteen feet from the ground. At the time that the wire broke plaintiff was not present, but came within a few minutes thereafter, and, seeing the end of the wire lying on the foundation, asked who broke the wire, and immediately picked up the wire, and it severely shocked him, and injured him in the manner set out in the complaint. The evidence tended to show that when the telephone wire broke it fell across the trolley wire, by which it became heavily charged with electricity.

The testimony on the part of the defendant tended to show that the telephone wire was put up on May 23, 1907, and was No. 14 iron wire, which was regularly used for telephone wire by it and was the best grade of galvanized wire, such as other companies used for this purpose. That this span of wire from the telephone pole to the house was about 300 feet, and that there was no danger of No. 14 wire breaking ordinarily when strung that distance. That the wires were securely attached at both ends, and that the poles and their fastenings were in good condition. That the wire was new when put up, and appeared new at time of accident, and that it was skillfully stretched from the pole to the house; and that under ordinary circumstances such wire would not break, and it would require an unusual strain to break such a wire when it was strung the distance that it was between the pole and the house. That servants of the defendant went to the wire upon the morning of the accident and shortly thereafter, and that it looked like the wire had been mashed at the place where broken, and seemed to be flattened a little on one side at the broken end, as though cut with a hatchet while resting on wood.

Upon the part of the plaintiff the court instructed the jury in substance that the defendant was required, in constructing and maintaining its lines of wire, to exercise that reasonable care and caution which would be exercised by a reasonably prudent person under similar circumstances, and to maintain its wires suspended a safe distance from the ground and to guard its wires falling by the exercise of due care.

Instructions were also given relative to contributory negligence and the burden of proof thereof; and the following instructions were also given:

"4. If you find that plaintiff was injured by the wire in question, and that said wire was hanging down on said lot, and that said wire was erected, maintained and owned by the defendant, and was under its management and control and that by contact with said wire the plaintiff, having a right to be on said property, was injured, a prima facie case of negligence is made out, and the burden was cast upon the defendant to show that this wire was hanging down through no fault of its servants and agents.

"9. If you find that the injury was the result of the concurring negligence of two parties, and would not have occurred in the absence of either, you are charged that the negligence of both parties was the proximate cause of the injury, and defendant is not excused because of the other concurring act of negligence.

"10. Plaintiff claims that at the place where he was injured the defendant had stretched two of its wires from a pole located on North Sixteenth Street across the street thence across lots numbered 1, 2 and 3, block 33, Fitzgerald Addition to the city of Fort Smith, Arkansas; thence across an alley running back of said lots running parallel and between Sixteenth and Seventeenth Streets; thence to a house, number 1620 North F; that said wires were run across said lots, and in their course across said lots were allowed to run within 9 or 10 feet of the ground; that the distance between the pole on North Sixteenth Street where the wire started and house number 1620 North F, to which the wires were attached, was about 300 feet, and that for this distance said wires had no support except the aforesaid pole and the aforesaid house; and that wire was so constructed as to cross a trolley line, and that nothing had been done to protect the wire from the trolley wire; that defendant erected and allowed their wires to remain in this condition for many weeks, and they were in such condition just prior to the time plaintiff was injured; that plaintiff, who was engaged at work erecting a building at a point on said lot, by and with the consent of the owner, was injured by reason of one or both of these wires having fallen to the ground, on account of having been so erected and maintained. If you find from the evidence that the above facts are true, then you must find that defendant was guilty of negligence, and you must find for the plaintiff, unless you further find that plaintiff was guilty of contributory negligence."

Other instructions were given on the part of the plaintiff which are not necessary to be set out in order to convey a fair understanding of the issues involved on this appeal.

A number of instructions were given on the part of the defendant; and some requested by defendant were refused.

The jury returned a verdict for the plaintiff, assessing his damages at $ 3,000. And from the judgment entered thereon defendant has appealed to this court.

Judgment reversed and cause remanded.

Walter J. Terry, for appellant; Brizzolara & Fitzhugh, of counsel.

1. The question in this case, underlying the evidence and all the instructions, is whether or not defendant used ordinary care in the construction and maintenance of its line. There was error in the instructions. Keasbey on Electric Wires, §§ 271-2; 112 S.W. 392; 63 L.R.A. 416; 11 Id. [N.S.] 684-8; Watson on Dam. for Pers. Inj. §§ 59, 60, 82, 161.

2. The 10th instruction is a peremptory charge to find for the plaintiff, and should not have been given. 83 Ark. 195; 85 Ark. 138.

3. Appellant's 13th prayer should have been given. The appellant was not bound to anticipate the intervening acts or negligence of third parties, and this issue should have been submitted to the jury. 110 S.W. 12, 1037.

4. Appellant's negligence was not the proximate cause of the injury. 109 Tenn. 331; 70 S.W. 616; 62 N.J. 451; 7 Am. Elec. Cas. 529.

Ben D....