Wegner v. Kelly

• Decision Date: 18 December 1917
• Docket Number: 30570
• Citation: 165 N.W. 449,182 Iowa 259
• Parties: EARNEST WEGNER, Appellant, v. JOSEPH H. KELLEY, Appellee
• Court: Iowa Supreme Court

165 N.W. 449

182 Iowa 259

EARNEST WEGNER, Appellant, v. JOSEPH H. KELLEY, Appellee

No. 30570

Supreme Court of Iowa, Des Moines

December 18, 1917

Appeal from Sac District Court.--E. G. ALBERTS, Judge.

ACTION for damages consequent on collision with telephone wire was tried, submitted to a jury, and a verdict returned for defendant, and judgment was entered thereon. The plaintiff appeals.

Affirmed.

Chas D. Goldsmith, for appellent.

M. M White and Malcolm Currie, for appellee.

LADD J. GAYNOR, C. J., EVANS, SALINGER, and STEVENS, JJ., concur. WEAVER and PRESTON, JJ., dissent.

OPINION

LADD, J.

Plaintiff, as tenant of his mother, was in possession of the E 1/2 SE 1/4 of Section 28, in Township 89 North, of Range 36 West of the 5th P. M., and the NE 1/4 NE 1/4 of Section 33 in the same township. There were highways along the section lines each way, and a telephone line about 2 feet out from the west line of the north and south road. In the morning of July 1, 1914, plaintiff drove a team, hitched to wagon with hayrack on, from the house, at the southeast corner of the 80 acres, along the road in an easterly direction, and at the corner, turned south, and upon reaching the southeast corner of the 40 acres, veered to the right, and stopped. He got off the wagon, took down the fence, and, as the team started on, he jumped into the wagon, caught hold of the lines, and, as he was driving through into his field, the telephone wire caught the ladder of the hayrack, slipped over it, and struck him in the face, cutting his lips, tearing out teeth, and breaking his jaw in three places. The telephone pole at the corner had been broken off in January previous, and the wire attached to the part of the pole remaining, and then wound around a fence post near by, so as to be about 7 feet above the ground. The evidence was in conflict as to whether the place where plaintiff was entering his field was a place of ingress and egress which had previously been used, and whether it so appeared; and the only errors assigned relate to rulings on the admissibility and sufficiency of evidence, and the giving of instructions.

I. The defendant testified to having examined the place where the accident occurred on September 1st thereafter, and was asked this question:

"Was there any indication that teams or vehicles had been driven through that place from the highway?"

Over objection "as incompetent, irrelevant and immaterial, and not in support of any legal issue in the case," he answered:

"No, sir; there was no evidence that there had been. There was grass growing up along the highway the same as everywhere else along the highway."

Appellant urges that the evidence should have been excluded, for that there was no showing that conditions were the same on September 1st as on July 1st previous. That may be; but tracks, if any there were, were not likely to be entirely obliterated in the meantime, nor grass to spring up so as to appear the way it did elsewhere along the highway. The time was not so remote as to exact the exclusion of the evidence, but remote enough to somewhat impair its weight. Counsel also argue that the evidence adduced did not tend to support any legal defense.

Were this to be conceded with reference to specific defenses, receiving it was not error, for it is always competent to prove surrounding conditions when negligence is charged. On this ground, objection to the question, "How far from the fence, where you drove through, was the traveled track of the road to that place?" propounded to plaintiff when called as a witness by defendant, was rightly overruled.

II. Exception is taken to the ninth paragraph of the court's charge to the jury, which reads:

"If there was a place of ingress and egress to the plaintiff's farm at the place where he attempted to go in on the day in controversy, and the defendant knew of the same, or could by reasonable diligence have discovered such condition, then the plaintiff is not bound to look to discover whether or not the telephone wires of the defendant would in any way interfere with his so entering his property, and the fact, if it be a fact, that this wire was down as complained of, and that he did not see it or did not look for it, would not make him guilty of contributory negligence. On the other hand, if there was no place of ingress or egress at the point in question, or the defendant could not by reasonable diligence have discovered such place, then it would be the duty of the plaintiff to use that degree of care and diligence which an ordinary reasonable and cautions person would exercise under like circumstances to discover whether his way was obstructed, and if, on using said degree of care and diligence, he failed to discover the wire, he would not be guilty of contributory negligence; but if he did not use said degree of care and diligence as above explained, and did not see the wire because of his failure to use said degree of care and diligence as above explained, then he would be guilty of contributory negligence such as to defeat his action."

Fault is found because of not including a definition of "ingress and egress." Such an omission did not render the instruction erroneous, if correct otherwise; for, if essential, the words might have been defined in another paragraph of the charge. Moreover, these words are in common use, and, if counsel for plaintiff feared their meaning would not be comprehended by the jury, he should have requested an appropriate instruction. Not having done so, he is not in a situation to complain.

Again, it is said the jury might have inferred, from the language employed, that, if there were no place of ingress and egress, defendant owned no duty of keeping the telephone line in repair. Nothing contained in the instruction warrants such an inference. It deals primarily with the subject of contributory negligence, and want of care on the part of defendant is alluded to only with reference to the duty devolving on plaintiff in the use of the highway as a means of access to the land. The duty of defendant had been defined in Paragraph 6 by saying, in substance, that he was bound to so construct the telephone line as not to incommode the public, and to exercise ordinary care in maintaining the wires along the public highway so as not to imperil the safety of travelers, and that it was for the jury to say whether defendant had met these requirements; and in the 7th instruction, by saying that "the owner of a telephone line, situated in the highway, must so string its wires that these will not sag down in the highway and thereby injure one without fault lawfully using the highway," and that, if the owner omits so to do, he is liable for the injury suffered therefrom, if, in the exercise of reasonable diligence, he should have known of its condition; and thereafter, in the 10th instruction, by saying:

"In determining whether or not the defendant's negligence, if the same has been proved, was the proximate cause of the injury suffered by plaintiff, the test in law is this: Was the injury complained of, of such kind or character as might reasonably have been foreseen or expected as the natural result of the acts of the defendant which are complained of? The question is not as to whether the particular injury complained of in this case might reasonably have been foreseen or expected, but whether some injury of the kind or character of the one complained of might have been foreseen or expected as the natural result of the acts or omissions which plaintiff charges as negligence of the defendant."

Plainly enough, the court did not, in the instruction under consideration, relieve the defendant of any duty defined in the three instructions referred to, but did say, inferentially, that he was negligent if he knew there was an entryway there, or in the exercise of ordinary diligence should have known thereof. The instruction is not open to the criticism of making defendant's responsibility dependent upon whether the place of the accident was one of ingress and egress, although this was a matter for consideration.

This brings us to the main controversy in the case: i. e., whether defendant, in stringing the telephone wire on the poles, was bound so to do as to afford plaintiff free and unobstructed access from the highway into his premises at every point along the line; or whether the defendant, in constructing and maintaining the line, may take into consideration that those interested in the land would ordinarily enter only at the usual...