St. George Pulp & Paper Co. v. S. New England Tel. Co.

• Decision Date: 14 March 1917
• Citation: 91 Conn. 563,100 A. 358
• Court: Connecticut Supreme Court
• Parties: ST. GEORGE PULP & PAPER CO. v. SOUTHERN NEW ENGLAND TELEPHONE CO.

100 A. 358

91 Conn. 563

ST. GEORGE PULP & PAPER CO.

v. SOUTHERN NEW ENGLAND TELEPHONE CO.

Supreme Court of Errors of Connecticut.

March 14, 1917.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by the St. George Pulp & Paper Company against the Southern New England Telephone Company. From a judgment of nonsuit, and denial of plaintiff's motion to set the nonsuit aside, plaintiff appeals. Reversed.

The action is to recover damages for a loss by fire alleged to have been caused by the defendant's negligence. Tried to a jury. The court, after the plaintiff had rested its case, granted a nonsuit, and denied the plaintiff's motion to set aside the nonsuit. Plaintiff assigns as error certain rulings of the court upon questions of evidence and its refusal to set aside the nonsuit.

John H. Light, of South Norwalk, and John J. Walsh and Edward J. Quinlan, both of Norwalk, for appellant. William F. Henney, of Hartford, for appellee.

THAYER, J. The plaintiff on September 4, 1913, owned a building in the city of Norwalk in which it conducted the business of manufacturing wood pulp into paper. The defendant conducted a telephone business in Norwalk. The plaintiff's complaint in substance was that on the day mentioned the defendant in the conduct of its business negligently without proper insulation or other means of protection maintained a telephone cable attached to and suspended from an uninsulated and unprotected steel carrier cable over and across and in contact with the roof of the plaintiff's building; that, as the defendant well knew, such unprotected cables were liable to become charged in various ways from other wires carried on the same poles with the plaintiff's wires, with currents of electricity of high potential and rendered liable to set fire to the plaintiff's building; and that by reason of the defendant's negligence in failing to maintain said cable and carrier cable at a proper distance from the building, and to properly insulate the same and to protect them by other means a dangerous current of electricity entered the building on the day before mentioned over said cables at the point in the roof where the cables were in contact therewith and set fire to the building, which, with its contents, was destroyed without any neglect or default on the part of the plaintiff.

After the plaintiff had introduced its evidence the court upon motion of the defendant granted a nonsuit upon the ground that the plaintiff had failed to make out, prima facie, that the fire was caused by the defendant's negligence. That the fire occurred and destroyed the plaintiff's building was not disputed. The plaintiff had the burden of proving not only that the fire was caused by a current of electricity from the defendant's cable, but that this was due to the defendant's negligence. The court correctly held that there was evidence to go to the jury as to the first question. It held that there was no evidence to go to the jury upon the question of the defendant's negligence. In this we think that it was in error.

There was evidence that previous to and at the time of the fire the defendant's cable rested upon the saddleboards at the peak of the roof of the plaintiff's building, and that the defendant had been notified of that fact prior to the fire. The evidence tended to clearly establish the fact that these cables were brought from a terminal upon a pole on Mill Hill to a telephone pole on Smith street, from which they passed over the plaintiff's building to another pole on the plaintiff's land upon the opposite side of the building, and thence to another part of the city, and that the Mill Hill pole was used in common by the defendant, the street railroad company, and the city, and that the wires of the other occupiers of the pole carried electric currents of high potential, some carrying 550 volts, some 2,300, and others 5,000 or 6,000 volts, and that the wires carried on this pole ran through the branches of trees standing near the pole, and that these trees at the time of the fire were in leaf, and that at the time of the fire arcing was observed among the branches of the trees and on the defendant's cables. There was attached to the defendant's cables at the Mill Hill pole and at each of the other poles mentioned a ground connection of stranded copper wire extending down the poles to the ground and attached to a grounding device in the earth. There was evidence that directly beneath and parallel with the peak of the roof and about a foot from it there extended an iron water pipe connecting with the city water system, and that this pipe was held in place by iron strips attached on each side of the pipe by lag screws to the rafters, at points near the ridge pole of the building, and that the saddle-boards which were attached to the...