Swan v. Salt Lake & O. Ry. Co.

• Decision Date: 28 September 1912
• Docket Number: 2347
• Citation: 127 P. 267,41 Utah 518
• Court: Utah Supreme Court
• Parties: SWAN v. SALT LAKE and OGDEN RAILWAY CO., et al

127 P. 267

41 Utah 518

SWAN v. SALT LAKE and OGDEN RAILWAY CO., et al

No. 2347

Supreme Court of Utah

September 28, 1912

APPEAL from District Court, Second District; Hon. J. A. Howell Judge.

Action by George W. Swan against the Salt Lake and Ogden Railway Company and others.

Judgment for plaintiff. Defendant named appeals.

AFFIRMED.

Pierce Critchlow & Barrett for appellants.

A. W North, F. K. Nebeker and E. M. Bagley for respondent.

RESPONDENT'S POINTS.

Appellant was negligent both in placing its high tension wire in such dangerous proximity to the telephone pole and in its continued maintenance thereafter, and was not only liable for the original wrong in so placing it, but was equally liable for permitting it to so remain. It is immaterial whether appellant or the telephone company was the prior or junior occupant of the zone. It is equally immaterial which company actually created the proximity in the first instance, because, if dangerous, it was the duty of both to remedy it regardless of which had brought it about. (San Ontonio G. & E. Co. v. Badders [Tex.], 103 S.W. 229; Herbert v. Lake Charles I. L. & W. Co. [La.], 35 So. 731; A. C. S. R. Co. v. Owings [Ga.], 25 S.E. 377; Gentzkow v. Portland R. Co. [Ore.], 102 P. 616; Overall v. Louisville E. L. Co. [Ky.], 47 S.W. 443; Brown v. Edison E. I. Co. [Md.], 45 A. 182, and cases cited; Drown v. New England T. & T. Co. [Conn.], 66 A. 801; McKay v. Southern B. T. & T. Co. [Ala.], 19 So. 695; Western Union T. Co. v. Griffith [Ga.], 30 S.E. 420.)

Where people have been injured in consequence of coming in contact with permanent structures or other objects negligently permitted to be and remain needlessly close or in dangerous proximity to their place of work they have recovered damages, and in every case the question of plaintiff's care or lack of it was held properly submitted to the jury. (Pidcock v. U. P. R. Co., 5 Utah, 612, 19 P. 191; Saunders v. S. P. Co., 13 Utah 275, 44 P. 932; Nelson v. S. P. Co., 18 Utah 244, 55 P. 364; Leach v. O. S. L. R. Co., 29 Utah 285, 81 P. 90, 110 Am. St. Rep. 708; Black v. R. M. Bell Tel. Co., 26 Utah 451, 73 P. 514; Speight v. R. M. Bell Tell. Co., 36 Utah 482, 107 P. 742.)

The servant has a right to rely upon it that his master has taken reasonable precautions for his safety, under such circumstances that the work may be done without extra hazard or peril to himself. (Harrison v. D. & R. G. Ry., 7 Utah, 523, 27 P. 729.)

Contributory negligence will not in all cases, be imputed, as a matter of law, to a person who receives an injury from a danger simply from the fact that it might have been seen, because the nature of his duties, or the surrounding circumstances, may be such as to distract his attention to other objects. (1 Thomp. Neg., sec. 189; Webb v. Heintz [Ore.], 97 P. 753.) And, under such circumstances, the question is for the jury, and not for the court. (Illingsworth v. Boston Electric Light Co., 161 Mass. 583, 37 N.E. 778, 25 L. R. A. 552; Mahan v. Newton & Boston Street Ry. Co., 189 Mass. 1, 75 N.E. 59; Reagan v. Boston Electric Light Co., 167 Mass. 406, 45 N.E. 743; Commonwealth Electric Co. v. Rose, 214 Ill. 545, 73 N.E. 780; Knowlton v. Light Co., 117 Iowa 451, 90 N.W. 818; Paine v. Electric Illuminating, etc., Co., 64 A.D. 477, 72 N.Y.S. 279; Stevens v. Company, 73 N.H. 159, 60 A. 848, 70 L. R. A. 119; Gentzkow v. Portland Ry. Co., 102 P. 615; Ladlow v. Oklahoma G. & E. Co., 119 P. 250.)

FRICK, C. J. McCARTY, J., STRAUP, J., concurring.

OPINION

FRICK, C. J.

Respondent recovered a joint judgment against the defendant Home Telephone & Electric Company and the Salt Lake & Ogden Railway Company, both Utah corporations, for damages for personal injuries which he sustained by reason of the alleged negligence of said corporations. The railway company alone appeals, and will hereafter be called appellant, while the other defendant will be designated as "telephone company."

The allegations of negligence against appellant in substance are that on and for a long time prior to the 22d day of July, 1910 (the day of the accident), appellant had negligently and carelessly placed and maintained on certain poles along the east margin of a certain highway in the town of Kaysville, Davis County, Utah, certain wires which continuously carried a dangerous quantity of electricity, to wit, 40,000 volts; that said wires were placed in close and dangerous proximity to the poles and wires of the telephone company, to wit, "within about one foot thereof;" that the wires of appellant aforesaid were by it negligently and carelessly suspended in such proximity to the poles and wires of the telephone company that appellant's wires charged with said quantity of electricity were "extremely dangerous to the safety and lives of the employees of the defendant Home Telephone Company in climbing and working on its poles." It is further alleged that respondent was an employee of the latter company, and that appellant had full knowledge of the dangerous condition of the wires aforesaid, and that, notwithstanding its knowledge of said dangerous condition, it negligently and carelessly permitted the same to exist.

The evidence produced on behalf of the respondent is, in substance, as follows:

In January, 1909, the telephone company constructed a line of telephone poles along the east margin of a public street or highway in Kaysville, an incorporated town in Davis County, Utah. The poles in question were twenty-five feet in length and were placed four feet in the ground. A crossarm was attached to each pole about four feet from the top and a mortise or gain was cut into each pole higher up and within about seven or eight inches from the top in which an additional crossarm could be fastened. Upon the lower crossarm telephone wires were strung soon after the poles were erected, and on the upper arm on the west side of the poles two larger wires for the purpose of transmitting electricity for light and power purposes had been strung some time between January and May, 1910. A third wire to be used for the same purpose was being strung on the upper crossarm at the time of the accident, July 22, 1910. In January, 1910, a year after the telephone poles had been erected, the appellant also erected poles upon which it intended to, and did, string high-tension wires for the purpose of transmitting electricity to be used in propelling its cars on its line of railway between Salt Lake City and Ogden, which up to that time had been transported with locomotive engines operated by steam power. Appellant's poles were forty feet long, and were set six feet into the ground. To the latter poles were attached two crossarms one near the top and the other some six or seven feet lower down. On the lower crossarm there were two wires and one on the upper carrying 40,000 volts of electricity to be used for the purpose aforesaid. The poles of appellant were thus from twelve to fifteen feet higher above the ground than those of the telephone company and the crossarms and wires on both lines of poles were also approximately that distance apart. The line of poles of the telephone company at the point of the accident and northerly thereof ran in a northwesterly direction, while the appellant's pole line ran more nearly in a northerly direction, so that the two lines appeared in the form of an acute angle like the letter V as they approached each other from the north, while in going south the lines again diverged, the appellant's line veering to the east of the telephone company's line which continues on in a southerly course. The two lines run in close proximity only for a short distance, and there was but a single pole on which the wires approached so close as might make them dangerous to anyone ascending the pole. At the point of the accident the poles of both companies practically constituted one line with the poles of the two companies alternating for a short distance. At this point appellant had placed a pole which was considerably shorter than its other poles while the telephone company's pole nearest to said short one was placed upon somewhat higher ground, so that one of the high-tension wires on the lower crossarm of appellant's line of poles was brought down, as the witnesses say, to from seven to eleven inches from the top of one of the telephone poles, or from sixteen to eighteen inches from the upper crossarm attached to the telephone pole. This condition had existed for at least sixty days prior to the accident, during all of which time appellant's wires were charged with the voltage aforesaid, and appellant during all of that time continuously operated its cars on its line of railroad in open view of the poles and wires placed as aforesaid. Some time before the accident, an employee of the telephone company who was in charge of its line directed the attention of the superintendent of the construction company that was constructing appellant's high-tension line to the proximity of appellant's wires to those of the telephone company at the point aforesaid. The same employee thereafter, and before the accident, also wrote a letter to said superintendent addressed in care of appellant at its offices in Salt Lake City. The respondent for about two months before the accident had been in the employ of the telephone company as an "apprentice lineman," and during that time was engaged in "trimming trees and stringing wires" north of the place of the accident.

On the morning of the accident respondent, with three others, was engaged in stringing a third power and light wire on the top crossarm of the telephone line. As before stated, the telephone poles were placed in a public highway or street in Kaysville along the easterly margin of said street, and the...