Twardosky v. New England Tel. & Tel. Co. . Twardosky

• Decision Date: 07 December 1948
• Docket Number: No. 5768.,5768.
• Citation: Twardosky v. New England Tel. & Tel. Co. . Twardosky, 95 N.H. 279, 62 A.2d 723 (N.H. 1948)
• Parties: TWARDOSKY v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. (two cases). TWARDOSKY v. PUBLIC SERVICE CO. (two cases).
• Court: New Hampshire Supreme Court

62 A.2d 723

TWARDOSKY

v.NEW ENGLAND TELEPHONE & TELEGRAPH CO. (two cases).

TWARDOSKY

v.PUBLIC SERVICE CO. (two cases).

No. 5768.

Supreme Court of New Hampshire.

Dec. 7, 1948.

Transferred from Superior Court, Hillsborough County; Goodnow, Judge.

Separate actions by Frank Twardosky, p. p. a Joseph Twardosky, against the New England Telephone & Telegraph Company, and against the Public Service Company of New Hampshire, and separate actions by Joseph Twardosky against New England Telephone & Telegraph Company and against the Public Service Company of New Hampshire, for damages arising out of collision of truck, owned by plaintiff Joseph Twardosky and in which Frank Twardosky was passenger, with a pole owned and maintained by the defendants jointly. There were verdicts for defendants in the cases of Joseph Twardosky and verdicts against each defendant in the sum of $2,000 in the cases of Frank Twardosky, and the cases were transferred on exceptions of the defendants to the denial of their motions for directed verdicts and the plaintiffs' exception to the court's denial to their motion to reopen the case after the evidence had been closed and the plaintiffs' exception to ruling of the court permitting the introduction in the evidence of a written statement by a certain witness.

Exceptions overruled.

Four actions of case arising out of a motor vehicle accident on September 21, 1946, when a 1931 Ford motor truck owned by the plaintiff Joseph Twardosky is alleged to have been in collision with a pole owned and maintained by the defendants jointly. The plaintiff, Frank, then six years of age, was a passenger in the body of the truck and received personal injuries for which he seeks to recover in the first tow actions. Two similar actions were brought against Michael Lawruk, the driver of the truck, which were settled before trial of the present actions for the sum of $4,250. in the case of Frank Twardosky, and One Dollar in the case of Joseph Twardosky. In the cases of Joseph Twardosky, not before us, verdicts were rendered in favor of the defendants. In the cases of Frank Twardosky, verdicts were rendered against each defendant in the sum of $2,000. The plaintiffs alleged as to the basis of their claims that the pole in question was negligently installed and maintained by the defendants. Transferred by Goodnow, C. J., upon the exceptions of the defendants to the denial of their motions for directed verdicts, and the plaintiffs' exception to the Court's denial of their motion to reopen the case after the evidence had been closed, and the plaintiffs' exception to a ruling of the Court permitting the introduction in evidence of a written statement by the witness Lloyd.

DUNCAN and JOHNSTON, JJ., dissenting in part.

Robert R. Earley, Paul J. Doyle, and Charles J. Flynn, all of Nashua (Elwin L. Page, of Concord, on the brief) for plaintiffs.

Hughes & Burns and Donald R. Bryant, all of Dover, for defendant New England Telephone & Telegraph Company.

Sulloway, Piper, Jones, Hollis & Godfrey, of Concord, for defendant Public Service Company of New Hampshire.

BRANCH, Chief Justice.

The defendants take the position that their motions for directed verdicts should have been granted for the following reasons: ‘1. There was no evidence of any negligence on the part of the defendants in maintaining the pole in question as and where it did; 2, There was no evidence to show any contact between the truck and the pole to cause the accident; 3, There was no evidence to show that the plaintiffs suffered any damage as the result of any contact.'

It is difficult to maintain these positions in the face of our decision in the case of Hayes v. New England Telephone & Telegraph Co., 86 N.H. 486, 174 A. 49, 54. It was there pointed out that the liability for improperly placing a pole in the highway ‘arises out of the neglect of the precautions required by the conditions of public travel’ and exists because the grant of permission to erect poles in streets and highways is made, either expressly or by implication, subject to the requirements of the public safety in the use of the streets. Reference was also made in that case to the decision in Davis v. Hill, 41 N.H. 329, in which it was held that objects ‘without the limits of the road but in the general direction of the travel thereon may properly be alleged as a defect in the highway itself.’ 41 N.H. 334. As in Coggswell v. Inhabitants, Lexington, 4 Cush., Mass., 307, where the defendant was held liable for an injury happening to a traveler in consequence of driving his wagon against a post which stood without the limits of the highway but within the line thereof and within the general course and direction of the travel thereon and rendering the traveling dangerous.

In the present case the Court submitted to the jury as the first question for them to consider: ‘Did the defendant companies place the pole in a position that provided a reasonably safe, free and convenient passage for public travel on the highway?’ As guides to their determination of this question, the jury had a view of the pole in question, and also had before them various photographs showing the pole and its location. On this evidence alone, a finding that the pole constituted an obstruction to the public travel as above defined, might well have been made. Two of the photographs above mentioned show the course of the defendants' power line beyond the point of collision toward the Twardosky house and indicate that the other poles, particularly the one next to the pole in question, were placed much farther outside the limits of the traveled way than the pole here involved.

The jury also had before it the testimony of the road agent of the town of Merrimack which was in part as follows:

‘Q. During all the time you have been traveling by that pole you never had any trouble getting by at all? A. We do in snow plowing.

‘Q. That is because of the way the snow piles up? A. We have quite a few of those poles where it piles up * * *

‘Q. But as far as traveling on the road in the summer time, you haven't had the slightest trouble? A. There is a blind corner there, and when you make the corner you face the pole. * * * It's a bad turn. If you meet anybody you are going to throw yourself out.'

In short, there was evidence that this pole stood on a bad turn much nearer to the traveled portion of the highway than the next pole to the North, in a place where travelers rounding the turn would have the pole directly in front of them, which was exactly the situation that confronted the driver of the truck. His testimony was as follows:

‘Q. And when you were coming across the road, where was that pole in respect to the path of your automobile? A. It was right in front of me.

‘Q. What did you do? A. Tried to miss it.'

The question whether the pole was so placed as to cause an obstruction to public travel was not one upon which expert testimony was necessary but one upon which the judgment of the jury was sufficient. As before indicated, the question was properly submitted to them by the Trial Court and the evidence furnished an adequate basis for their decision.

The second claim of the defendants is that ‘there was no evidence to show any contact between the truck and the pole.’ Upon examination, this claim appears to be, not that evidence upon this point was lacking, but that the jury ought not to have believed such evidence as there was. The plaintiff Joseph and his wife both testified that when they examined the pole on the day following the accident, they observed fresh marks upon it ‘where it hit and dug a little off where it hit.’ They also observed tire marks close to the pole which might well have been made by the truck as it passed. There was also evidence that the side boards on the right hand side of the truck were broken and fell off shortly after the truck passed the pole and that the body of the truck came completely off and was found some fifty feet beyond the supposed point of collision. It is true that the three men who were riding in the cab of the truck testified that it did not hit the pole at all and that the body had been loose and swaying before it finally slid off. In this state of the proof it was clearly for the jury to determine whether or not the truck hit the pole.

If the jury found, as they apparently did, that the truck hit the pole, defendants' position that there was no evidence to show that the plaintiffs suffered any damage as the result of any contact, requires little notice. It is evident that the plaintiff Frank was injured when the truck body came off and landed beside the road. If the body was loosened or knocked from the truck as a result of a collision with the pole, this contention of the defendants comes to nothing.

After the evidence had been closed, the plaintiffs filed a motion which reads, in part, as follows: ‘Now comes the plaintiffs in the above entitled cases and respectfully requests the court to permit the plaintiffs to reopen and recall witness, Dr. Raymond H. Marcotte to give testimony as to the permanency of the plaintiff Frank Twardosky's injuries. The plaintiffs set forth as reasons thereof the following facts: 1. That at the time Dr. Marcotte, the consultant physician testified, plaintiffs' attorneys were reasonably assured that Dr. Norman Crisp, the attending physician, would be available for testifying and that deputy sheriff Spillane had been given a subpoena to insure the attendance of Dr. Norman Crisp. 2. That Frank Twardosky is suffering from major ailments which are permanent and due to the accident. 3. That through inadvertance, mistake and misfortune, Dr. Marcotte was not asked to testify to this matter. 4. That by reason of the urgency and press of the trial this fact was not called to the attention of ...