Wood v. Cumberland Telephone & Telegraph Co.

• Decision Date: 06 December 1912
• Citation: 151 S.W. 29,151 Ky. 77
• Parties: WOOD v. CUMBERLAND TELEPHONE & TELEGRAPH CO.
• Court: Kentucky Court of Appeals

151 S.W. 29

151 Ky. 77

WOOD v. CUMBERLAND TELEPHONE & TELEGRAPH CO.

Court of Appeals of Kentucky.

December 6, 1912

Appeal from Circuit Court, Muhlenberg County.

Action by P. S. Wood against the Cumberland Telephone & Telegraph Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Flexner & Gordon, of Louisville, and Willis & Meredith, of Greenville, for appellant.

Newton Belcher and Belcher & Sparks, all of Greenville, and Clarence Finn, of Owensboro, for appellee.

SETTLE J.

On the trial of this case in the court below, a verdict was rendered for appellee in obedience to a peremptory instruction given by the court at the conclusion of the appellant's evidence. So the only question arising on this appeal is whether or not the evidence introduced in behalf of the appellant was sufficient to take the case to the jury. The action was brought by appellant to recover of appellee damages for the burning of his storehouse and goods, situated at Belton, a village in Muhlenberg county; it being alleged in the petition that the destruction of the property was caused by the negligence of appellee in failing to properly insulate its wires connected with and used in operating a desk telephone within the building and in failing to provide the telephone or wires with a lightning arrester; furthermore that the striking of the telephone wires by lighting, somewhere in the vicinity of the building produced and carried into it an electric current of unusual force which started the fire, either by coming in contact with the goods stored therein, or overheating the wires within the building.

The building was in size 70 feet by 100 feet, constructed of brick with a roof of tin. Its interior was divided into three apartments connected by arched openings in the partition walls, and the buildings, as a whole, occupied as a general or department store. There was a single room built over the southwest corner of the store building, which appellant occupied as a sleeping room, and from this room a stairway led down into the store below. The telephone wires entered the main building at its north or rear end through the upper part of a window to the left of the door, and within the building extended along one of the partition walls, back of pine shelving, connecting with the telephone near a desk in the interior of the building.

The fire occurred about 1 o'clock in the morning, and was first discovered by appellant, who was awakened from sleep by the smoke which entered the bedroom over the store. He made his escape from the building by descending from its roof to that of a coal-house adjoining, thence to the ground. It is manifest from the bill of evidence appearing in the record that the telephone wires were uninsulated where they entered the building, and that they were neither there, nor elsewhere, provided with a lightning arrester; indeed this is admitted by appellee. The evidence shows that porcelain tubes should be used for insulating such wires where the building is entered by them, and that the safety of persons operating telephones requires the use of lightning arresters for grounding the electric currents during the prevalence of electrical or thunder storms.

If it could be said that appellant's right to recover damages as claimed, depended wholly upon whether appellee's failure to insulate its telephone wires and provide a lightning arrester was negligence, the peremptory instruction should not have been given. But, as it was incumbent on him to further show that such negligence was the proximate cause of the burning of his storehouse and goods, it remains to be determined whether the evidence introduced in his behalf conduced to prove that the telephone wires were struck by lightning outside the building, thereby creating upon them an additional electric current of unusual force which, because of the negligent failure of appellee to properly insulate the wires or provide a lightning arrester, they conducted into the building and caused the fire.

As said in City of Louisville v. Bridwell, 150 Ky. 589, 150 S.W. 672, with respect to an accident resulting in an injury to the person of the plaintiff: "It seems to be well settled in law that, if the injury is the result of concurring causes, for one of which only the defendant is responsible, he must answer; or, where the injury is the combined result of negligence and accident, the negligent party must answer unless the injury would have...