White River Railway Company v. Batesville & Winerva Telephone Company

• Decision Date: 17 December 1906
• Citation: 98 S.W. 721,81 Ark. 195
• Parties: WHITE RIVER RAILWAY COMPANY v. BATESVILLE & WINERVA TELEPHONE COMPANY
• Court: Arkansas Supreme Court

98 S.W. 721

81 Ark. 195

WHITE RIVER RAILWAY COMPANY v. BATESVILLE & WINERVA TELEPHONE COMPANY

Supreme Court of Arkansas

December 17, 1906

Appeal from Izard Circuit Court; John W. Meeks, Judge; affirmed.

STATEMENT BY THE COURT.

The complaint charged that the Batesville & Winerva Telephone Company was a corporation organized under the laws of Arkansas, and owned prior to October, 1901, a telephone line through the counties of Independence, Izard and Baxter, and that in the early part of 1901 it constructed its telephone line on the north or east bank of White River from Syllamore to Penter's Bluff, Independence County. That in October November and December, 1901, the defendant, the White River Railway Company, began the construction of its line of railway from Penter's Bluff to Syllamore. That the railway company constructed its roadbed largely upon the ground where plaintiff's line was located, and in the construction of its line defendant wilfully, intentionally and unlawfully cut down, tore down, and dug up a large number of plaintiff's poles, towit, 560, and tore down and destroyed plaintiff's telephone wires for the greater part of the distance between Penter's Bluff and Syllamore. That by reason thereof plaintiff lost the value of said telephone line, in addition to the expense of erecting and maintaining it. That, by reason of such willful intentional and unlawful destruction of its plant, plaintiff has been damaged $ 3,000 actual damages, and the further sum of $ 3,000 double damages, and asks for damages in the sum of $ 6,000.

The appellant answered, denying each and every allegation of the complaint, and further charged that, if plaintiff's telephone line was injured, as alleged, it was the act of one J. R. Reynolds, or his sub-contractors, the said Reynolds having the contract, as an independent contractor, for the construction of said railroad, and for whose negligence and torts this defendant is in no wise responsible.

After the jury had been impaneled and after the evidence was all in, the defendant asked leave of the court to amend its answer, so as to conform to new evidence, which amendment was as follows:

"Defendant for further answer, says: That the defendant surveyed its line of road over the line on which plaintiff built its telephone line, and had staked off its right of way, and was in good faith proceeding to build its line of railroad before the plaintiff built its telephone line; that after it had so appropriated said line the defendant built its telephone lines on the line of the defendant's survey, with full knowledge and notice of the right and claim of defendant, and subject to same."

The court refused to allow the amendment to be made, to which all proper exceptions were saved.

The uncontradicted evidence establishes the fact that the damage of which appellee complains was done by a sub-contractor, one J. W. Williamson, who had a contract with appellant's principal contractor, J. H. Reynolds, for the cutting of the right of way and constructing appellant's roadbed along the line where it is alleged that appellee's injury occurred. It was conclusively established that the work which caused the injury and damage to appellee was the work of an independent contractor, over which appellant exercised no control.

The proof tended to show that the work of clearing appellant's right of way and building the roadbed necessarily caused the injury to appellee's telephone line of which it here complains. There was some proof of negligence on the part of the contractor in injuring the telephone line.

The clerk of the circuit court of Izard County, where the injury occurred, testified that the map adopted by the White River Railway Company was filed in his office February 8, 1902, and that the profile of the road was filed February 13, 1902. The undisputed evidence showed that appellant's right of way over which appellee's line ran was cut and cleared in 1901. There is no testimony abstracted by appellant or appellee that shows that any work was done on the road covered by appellee's telephone line, where the injury to it was done, after the filing of the map and profile.

So far as abstracted, the testimony shows that the work on appellant's right of way that injured appellee occurred before appellant had filed its map and profile.

There was some proof tending to show that appellee's telephone line was built after appellant's survey was made and the right of way cut. But the preponderance of the evidence was to the contrary.

The court on its own motion, among others, gave the following instruction:

3. "If you find from the evidence that the plaintiff sustained damages to its telephone line substantially as alleged in the complaint, and that the damages so sustained were occasioned by the acts of contractors who had contracts with the defendant to clear the right of way and construct its road, the defendant is liable for all the damages sustained by plaintiff which were necessarily done by said contractors in the cutting of the said right of way or construction of said railroad. In other words, if the contractors, in cutting out the right of way and constructing the railroad, were necessarily compelled to destroy the plaintiff's telephone line, then you will find for the plaintiff."

4. "I instruct you that an independent contractor is one to whom the owner lets a certain work, to be done by such contractor and delivered to the owner in a finished condition, when the owner reserves no control over the employees of the contractor, or the manner of conducting the work; and if you find from the evidence that the clearing of the right of way and constructing the railroad in controversy had been let to such independent contractor by the defendant and that the damages sustained by the plaintiff, if any, or any part thereof, was the result of the negligence of said contractor or his employees or sub-contractors, then I charge you that the defendant would not be responsible to the plaintiff for such damages, and you will find for the defendant as to all such damages as were the result of such negligence."

5. "If you find from the evidence that the plaintiff's telephone line was injured by the clearing of the right of way and construction of said railroad, and that the defendant is liable under these instructions for only a part thereof then I charge you that it is incumbent on the plaintiff to prove, by a preponderance of the evidence, that part of said damages for which defendant is liable; and unless the plaintiff has so proved said damages, you will find for the defendant."

The court refused the following request of appellant for instructions, towit:

1. "If you find from the evidence that the defendant had surveyed its line, or any part thereof, before the plaintiff built its telephone line, and that the plaintiff built its telephone line, or any part thereof, on the survey defendant had made on which to build its railroad, and the defendant was at the time in good faith prosecuting the work of building its line of road, and the plaintiff built its telephone line on the line of said survey, with knowledge of said survey, then I charge you that the plaintiff would not be entitled to recover for such damage to its line as was the necessary consequence of the clearing of the right of way and construction of said railroad."

The court refused to give defendant's instruction number one, as above, to which all proper exceptions were saved. A judgment for $ 550 was rendered in favor of plaintiff.

Appellant's motion for new trial contained the general assignments that...