Southwestern Telegraph & Telephone Co. v. Abeles

• Decision Date: 14 March 1910
• Citation: 126 S.W. 724,94 Ark. 254
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY v. ABELES
• Court: Arkansas Supreme Court

126 S.W. 724

94 Ark. 254

SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY v. ABELES

Supreme Court of Arkansas

March 14, 1910

Appeal from Pulaski Circuit Court, Second Division; James H Stevenson, Judge; affirmed.

STATEMENT BY THE COURT.

Theodore D. Abeles instituted this action against the Southwestern Telegraph & Telephone Company to recover damages for physical injuries received by him on account of the alleged negligence of said company. From a verdict and judgment in his favor for $ 6,900 an appeal has been duly prosecuted to this court. The appellant owned and operated a system of telephone lines in the city of Little Rock, Ark., and one of its telephones had been installed in the office in the lumber yard of Charles T Abeles & Company in said city. Appellee was an employee of Charles T. Abeles & Company, and a part of his duties was to answer telephone calls. On the 4th day of April, 1907 appellee was called to the telephone, and, while answering the call, he was severely injured. Appellee had put the receiver to his ear, and was using the telephone in the usual way at the time he received the injury. The physicians and the ear specialist who treated appellee testified that his hearing in the left ear was completely destroyed, and his hearing in the right ear somewhat impaired, although not seriously so. There had been April showers throughout the day on which appellee was injured. The testimony on the part of appellee tended to show that the storm was not an extraordinary one, but was of the ordinary kind incident to the season of the year, and was accompanied with the usual flashes of lightning; that at the time appellee received the injury the storm in the vicinity of the office where he was using the telephone had ceased.

Clem J Drees, for appellee, testified that he graduated in electrical engineering from the State University in 1895, and had practiced his profession ever since. He said that he was familiar with the installation of electrical appliances for the prevention or transmission of lightning and electricity. Here follows a question propounded to him and his answer:

"Q. I will ask you what was the proper way of installing a telephone in 1907 in regard to the safety from lighting or the transmission of lightning? A. The wires, on entering the building, should immediately be connected to a protective device which would protect the 'phone from lightning and also from abnormal currents and against what they call 'sneak' or small currents. There are three things to be guarded against in the 'phone: to be protected against crosses from outside wires and putting large currents into it, to protect it from lightning, and to protect it from small currents, called 'sneak currents.' These protective devices should be installed right at the point, or as close as possible to the point, where the wires enter the building where the 'phone is to be installed. Q. Explain to the jury what that protective device is. Give as plain a description of it as you can. A. These three protective devices against lightning, against abnormal currents, and against small currents, are sometimes separated, but they can be combined into one instrument. Frequently they are combined into one instrument. The protection against lightning is based on the theory that lightning generally follows the shortest path to the ground; it prefers the easiest path to the ground, rather than going through a long route or long circuit, so that lightning is shunted to the ground, or what we call 'short circuited' to the ground, by giving it a chance to go through a short circuit to the ground." Continuing, he explained in detail the action of lightning on these protective devices. He further stated that a protective device or lightning arrester, in the absence of a ground wire from the telephone, would be almost no protection against lightning. That the object of the ground wire is to convey the lightning from the lightning arrester to the ground. That the ground wire should be placed either on the outside or inside of the room, but generally it is placed on the outside.

The evidence shows that there was no ground wire in connection with the protective device or lightning arrester to the telephone in question.

The witnesses on the part of appellant, some of them being electrical engineers, testified that it was not the practice of telephone companies to use ground wires in connection with lightning arresters for each telephone, but that ground wires were placed at stated intervals along the poles carrying the telephone wires. They testified that they were familiar with the construction of the telephone systems in the various towns and cities of this State, and that in none of these exchanges were any telephones equipped with lightning arresters or protectors, with ground wire attached to them at the telephone. That they considered the protective apparatus used by appellant much better than one to which is attached a ground wire. That appellant only uses lightning arresters or protective devices with ground wire attached on parts of its line where the telephone wires are laid underground.

Additional facts will be referred to in the opinion. We will not set out the instructions given or refused by the court. To do so would be to needlessly lengthen the opinion. Sufficient reference to them will be made in the opinion.

Judgment affirmed.

Walter J. Terry, for appellant.

1. Methods employed by other parties and companies in conducting a similar business is competent evidence as tending to show whether the particular party has exercised ordinary care. 117 Ga. 449; 97 Am. St. Rep. 169; 71 Ala. 509.

2. The first instruction is erroneous in that it assumes that the wires or instruments caused or contributed to the presence of the lightning, and does not submit to them the question they did so contribute. There was no evidence that they caused or contributed to attracting the lightning.

3. There was evidence that the stroke of lightning was of an extraordinary character. Appellant's fourth instruction should have been given. 9 S.W. 40.

4. The court should have given appellant's fifth instruction, in effect that, even though appellant was negligent, yet if the current of electricity was so great that a lightning arrester, properly located and having proper ground connection, would not have prevented the casualty, the jury should find for the defendant. 21 L.R.A. 723.

5. The court erred in refusing the eleventh instruction requested by appellant. Appellant was under no legal duty to provide its wires with insulation sufficient to withstand a stroke of lightning. 63 L.R.A. 219.

John W Blackwood and Morris M. Cohn, for appellee.

1. It was not necessary to reiterate and emphasize the allegations of the complaint, as the eleventh instruction requested by appellant sought to do. Not all of the allegations were relied on by appellee, and such of them as were relied on were fully covered in another instruction. 73 Ark. 183; 72 Ark. 384; 66 Ark. 523; 74 Ark. 133. The question of insulation was abandoned; no evidence was introduced concerning it. It is proper to refuse an instruction not warranted by the proof. 2 Crawford's Dig., col's. 1817, 1818. And it is prejudicial error to give an instruction based on a hypothesis unsupported by evidence. 70 Ark. 441; 63 Ark. 177; 14 Ark. 530.

2. Appellant's contention that the first instruction assumes that the wires or instruments caused or contributed to the presence of the lightning is not a reasonable conclusion. Under the instructions as a whole there could have been no finding for the plaintiff unless the jury found that there was no ground wire; that there should have been one; that such wire would have prevented the accident; that it occurred in an ordinary storm; and that there were known and approved devices which a reasonably prudent man would have used under similar circumstances. No other basis of liability was contended for, and the instructions covered the law of the case. 69 Ark. 558; 67 Ark. 1; 77 Ark. 458; 72 Vt. 441, 443, 444, 445; 48 A. 643; 42 L.R.A. 919; 116 S.W. 418; 1 Joyce, Electric Law, § 445f; 89 Ark. 581.

3. Had the testimony of Drees been incompetent, and proper exceptions saved, it was not prejudicial because the facts toward which it was directed were otherwise proved by competent evidence. 58 Ark. 125; Id. 374; Id. 446; 7 Ark. 542; 9 Ark. 545; 68 Ark. 607; 74 Ark. 417; 77 Ark. 453.

OPINION

HART, J., (after stating the facts).

1. It is earnestly insisted by counsel for appellant that the evidence does not support the verdict. In other words, it is contended that the evidence, when considered in the light most favorable to appellee, did not warrant the jury in returning a verdict in his favor. In determining this question, it becomes necessary to ascertain what is the duty of telephone companies in putting in and maintaining telephones.

In the case of Southern Telegraph & Telephone Co. v Evans (Tex. Civ. Appeals), 54 Tex. Civ. App. 63, 116 S.W. 418, the court said: "The duty resting upon telephone companies to adopt precautions for preventing charges of atmospheric electricity from entering buildings over their telephone wires is thus stated by the Supreme Court of Vermont: 'Having undertaken to place and maintain the instrument in the house and connect it with its telephone line for the use of the deceased, in so doing it was under the duty to exercise the care of a prudent man under like circumstances. If, while in the exercise of such care, it had reasonable grounds to apprehend that lightning would be conducted over its wires to and into the...