Walmsley v. The Rural Telephone Association of Delphos

• Decision Date: 08 December 1917
• Docket Number: 21,156
• Citation: 169 P. 197,102 Kan. 139
• Parties: JAMES M. WALMSLEY, Appellee, v. THE RURAL TELEPHONE ASSOCIATION OF DELPHOS, Appellant
• Court: Kansas Supreme Court

169 P. 197

102 Kan. 139

JAMES M. WALMSLEY, Appellee, v. THE RURAL TELEPHONE ASSOCIATION OF DELPHOS, Appellant

No. 21,156

Supreme Court of Kansas

December 8, 1917

Decided July, 1917.

Appeal from Ottawa district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Telephone Wires Crossing Highway--Sufficiency of Evidence. Negligence in the maintenance of a telephone wire across a public highway is sufficiently established when it is shown that the wire hung so low as to interfere with a customary use of the highway.

2. SAME--Injuries--Proximate Cause--Question for Jury.

"Negligence to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom, not that the specific injury would result." (Railway Co. v. Parry, 67 Kan. 515, syl. P 2, 73 P. 105.)

3. SAME--Telephone Wire Over Highway--Injuries--Prima Facie Case--Shifting of Burden of Proof. When a plaintiff has proved that he sustained injuries through the dangerous situation of a telephone wire hanging across a public highway, the burden passes to the defendant to show that the dangerous situation of the wire was not due to the act of the defendant and had not existed for such length of time as to charge the defendant telephone company with notice of its defective condition.

4. SAME--Trial--Record Examined--No Prejudicial Error. The pleadings, the evidence, the instructions given and refused, and the judgment, in an action to recover damages for personal injuries sustained through the negligent maintenance of a telephone wire across a public highway, examined, and no prejudicial error discerned therein.

Thomas L. Bond, of Salina, for the appellant.

E. C. Sweet, of Minneapolis, for the appellee.

OPINION

DAWSON, J.:

This is an appeal from a judgment awarding damages to plaintiff for injuries sustained through the alleged negligence of defendant in the maintenance of its telephone wire across a public road.

The plaintiff was riding on a low iron-truck wagon and hayrack with a large steel grain bin loaded thereon. He carried a loaded rifle and was standing on the right front end of the hayrack. Plaintiff's servant was driving the team of horses at a walking pace. The telephone wire across the highway hung so low that it caught the grain bin and caused the wagon to upset, and the plaintiff was thrown to the ground. The bin struck the rifle and it was discharged; the bullet entered plaintiff's chest, and he was severely wounded.

Defendant's answer was a general denial and contained an allegation that the telephone wire was properly maintained so as not to incommode the public in the ordinary and reasonable use of the highway. Defendant's answer also contained a plea of contributory negligence.

The jury's general verdict was for $ 3,000, and a remittitur of $ 1,000 was conceded by plaintiff. Two special questions submitted by the court were answered:

"1. Q. At the time of the injury complained of was the plaintiff exercising ordinary care for his own safety? A. Yes.

"2. Q. At the time of the injury complained of did the telephone wire interfere with the use of the highway for ordinary purposes of travel? A. Yes."

The plaintiff's evidence tended to prove all the allegations of his petition. The facts were simple. The level of the hayrack was about three feet above the ground. The height of the bin was about eight feet at the eaves where the telephone wire caught the bin. Therefore the wire hung down or sagged to about eleven feet from the ground. It was shown that the hauling of threshing machines and loads of hay is a common use of public roads, and such machines and loads with their drivers riding thereon reach to a height of eleven feet or more. It was also shown that the hauling of steel grain bins on the highway is common. The stringing of telephone wires across highways at the low height of eleven feet is prima facie negligence. (37 Cyc. 1645, 1646.)

It is contended by defendant that there was a total failure of proof that the telephone company knew that its wire was hanging so low as to endanger the use of the highway, and a total failure of proof that it so hung for such a length of time that the company should have known of its negligent condition. The proof did fail in that respect. Will that exempt the defendant from liability? If so, it will seldom avail one injured on a public highway through the negligent hanging of wires to seek a recovery for damages for unless the injured person was acquainted in the neighborhood it would be impossible for him to find witnesses to show that the negligent or dangerous hanging of the wires had existed for some length of time. If his mishap occurred on a lonely and unfrequented highway there would be no witnesses to prove the condition or negligent height of the wires prior to his accident. On the other hand, it is always the duty of a telephone company to maintain its wires at a safe height, and it is the duty of the company to make repairs promptly if through wear and tear, or storm, or vandalism, the wires come down to a dangerous level. In other words, a telephone company must look after its property. If this company did look after its property at reasonable intervals, it knew when its wires were last seen in a safe situation, and could have readily shown the facts. Then, of course, if it had proved that shortly before the plaintiff's accident the wires were hanging safely and properly, it would not ordinarily be liable for an injury growing out of a sudden disrepair of its wires which it did not know of, and could not reasonably have known of in time to repair before the plaintiff was injured. The court holds, therefore, that when the plaintiff proved the negligent condition of the wire, and that it caused his injury, his prima facie case was established, and the burden of proof then passed to the defendant to show that the negligent condition had not existed a sufficient length of time for the company to learn of its defective condition, or to charge it with notice thereof. This imposed no unreasonable burden on defendant. It is simply an incident among the many responsibilities attaching to those privileged persons and corporations who obtain and enjoy special rights of occupancy in the public...