Wells v. Northeastern. Tel. Co.

• Decision Date: 09 April 1906
• Citation: 64 A. 648,101 Me. 371
• Parties: WELLS v. NORTHEASTERN TELEPHONE CO.
• Court: Maine Supreme Court

64 A. 648

101 Me. 371

WELLS

v. NORTHEASTERN TELEPHONE CO.

Supreme Judicial Court of Maine.

April 9, 1906.

Exceptions from Supreme Judicial Court, Franklin County.

Action by Edith E. Wells against the Northeastern Telephone Company. Verdict for plaintiff. Motion and exceptions by defendant overruled.

Action on the case to recover damages for the destruction of the plaintiff's barn and its contents by fire alleged to have been caused by the negligence of the defendant in the construction and maintenance of its telephone line past the plaintiff's premises on the west side of the highway in the town of Avon.

Lightning during a thundershower on the evening of August 22, 1903, was the primary cause of the fire. One of the telephone poles, on which was suspended the wires of the defendant, stood about five feet from the northeast corner of the plaintiff's barn and this pole was guyed to the barn by means of a piece of ordinary telephone wire. There was no lightning arrester, or other appliance connected with this guy wire or with the telephone wires in the vicinity, to divert powerful currents to the earth at the time of thunderstorms. The plaintiff claimed that lightning struck the main line of the defendant's wire some distance away and by menus of the guy wire was conducted into her barn, thereby setting fire to the same, and also that the defendant was negligent in the construction and maintenance of its telephone line. The defendant contended that the barn was struck by lightning which descended directly from the clouds and communicated the fire without the intervention or conduction of any of the telephone wires, and that there was no negligence in the construction and maintenance of its wire line.

The action was tried at the September term, 1904, of the Supreme Judicial Court, Franklin county. Plea, the general issue. Verdict for plaintiff for $804.68. The defendant then filed a general motion to have the verdict set aside. The defendant also took exceptions to the refusal of the presiding justice to give certain requested instructions, but these exceptions were not insisted upon at the law court.

All the material facts are stated in the opinion.

Argued before EMERY, WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

F. W. Butler and E. E. Richards, for plaintiff. Foster & Foster and Joseph C. Holman, for defendant.

WHITEHOUSE, J. The plaintiff recovered a verdict of $804 for the destruction of her barn and its contents by fire alleged to have been caused by the negligence of the defendant company in the construction and maintenance of its telephone line past the plaintiff's premises on the west side of the highway in the town of Avon. The case comes to this court on the defendant's motion to set the verdict aside as against the weight of evidence. The exceptions are not insisted upon.

The defendant's line wires appear to have been suspended upon poles in the ordinary manner, one of the poles being erected within about five feet of the northeast corner of the plaintiff's barn. There was a curve in the road at this point and to counteract the tendency of the line wire to draw this pole from its vertical position, a guy wire, consisting of a piece of ordinary telephone wire, was stretched from the pole to the corner of the barn. One end of this guy wire appears to have been wound around the pole at a point about two feet below the telephone wires, and the other end attached to the barn by means of a lag screw driven into the corner post a short distance below the eaves. There was no lightning arrester, or other appliance connected with this guy wire or with the telephone wires in that vicinity, to divert powerful currents to the earth at the time of thunderstorms. Immediately before the fire on the morning of August 22, 1903, a thundershower came up in the vicinity of the plaintiff's buildings. The rainfall was light, but it was followed by a discharge of lightning of extraordinary violence, though but a single flash of light was observed. About 650 feet north of the barn a large elm tree was standing on the easterly side of the road with its branches overhanging the traveled way and extending nearly to the telephone wires on the westerly side. The lightning struck this tree near the top, and ran down almost the entire length of it, splitting off a large branch nearly to the ground, and stripping off some of the bark. One part of this electric discharge then appeared to cross the street under the telephone wires, while another part ran along a wire fence.

Of the 11 telephone poles in the line extending northerly from the barn about 1,800 feet, 4, namely numbers 1, 3, 4, and 10, counting from north to south were evidently shattered or slivered by the action of some part of this same electric discharge, while the other 7 poles did not appear to have been injured by the lightning. Nor was there any distinct evidence of such injury to the pole at the corner of the barn or to any pole south of the barn. But the board on the coiner post at the northeast corner of the barn was newly split from a point a little above the lag screw, to which the guy wire was attached, downward nearly to the sill. When first seen the fire was in this corner of the barn directly beneath the point where the guy wire was connected with it, and there was no Indication that the barn was struck by lightning at any other point.

Upon this state of facts it was the theory of the plaintiff that a fragment of the lightning bolt which shattered the elm tree, struck the telephone wires in close proximity to the overhanging branches; that an electric current was conducted by these wires to the most northerly pole that was found to be slivered, and in the opposite direction, past the most southerly pole that was splintered, to the pole at the corner of the barn; and that a current then passed into the guy wire; and thence by the wire to the corner of the barn which was thus ignited.

On the other hand, the defendant company claims that of the three different general forms in which lightning may be discharged from the clouds to the earth; namely, the nearly direct line, the zigzag or angular course and the form of the inverted tree, the discharge in this case assumed the form of the branches of an inverted tree; that some of these branches struck the elm tree and the four telephone posts, independently of each other; that one of these fragments in like manner struck the corner of the barn, and thus directly caused the fire; and that no electric current was conducted in either direction by the telephone wires, and that none passed over the guy wire to the barn.

The defendant's theory is that the plaintiff's barn was destroyed by lightning which descended directly from the clouds and communicated the fire without the intervention or conduction of any of its telephone wires: and the company accordingly contends in the first place that nothing in the construction or maintenance of its telephone line past the plaintiff's premises can be deemed the proximate cause of the plaintiff's loss.

In support of the plaintiff's theory, attention is called not only to the manifestations of the lightning stroke actually observed at the time in question, and the facts already stated in regard to the shattered poles of the telephone line and the riven board at the corner of the barn where the guy wire was attached, and the fire was first seen; but also to the testimony of three electricians who gave evidence as experts upon the questions involved. Mr. Mallett for 12 years an instructor in electrical science and a civil engineer does not controvert the proposition that lightning may be discharged to the earth in the form of the branches of an inverted tree, and is of opinion that when the lightning struck the elm tree in this case there might have been a secondary discharge which struck the telephone wires or poles and then followed the wires, and passed to the earth by the best conductor it could find; but in his judgment a discharge in the form of the branches of a tree, or in any other form, would not be so widely diffused as to strike objects more than 200 feet distant from the principal charge. He also states that it is in accordance with his actual observation in a similar instance cited by him, that lightning will follow telephone wires or a wire fence, and shatter some of the poles or posts, and jump over...