Wyatt v. Chesapeake & Potomac Tel. Co. Of Va.

• Decision Date: 24 March 1932
• Citation: 163 S.E. 370
• Court: Virginia Supreme Court
• Parties: WYATT. v. CHESAPEAKE & POTOMAC TELEPHONE CO. OF VIRGINIA.

163 S.E. 370

WYATT.

v.CHESAPEAKE & POTOMAC TELEPHONE CO. OF VIRGINIA.

Supreme Court of Appeals of Virginia.

March 24, 1932.

^*

Error to Circuit Court of Elizabeth City County.

Action by Elizabeth Young Wyatt against the Chesapeake & Potomac Telephone Company of Virginia. From order setting aside verdict for plaintiff and dismissing action, plaintiff brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, GREGORY, and CHINN, JJ.

Montague & Holt, of Hampton, and J. Winston Read, of Newport News, for plaintiff in error.

Lett & Ford, of Newport News, and Jno. S. Eggleston, of Richmond, for defendant in error.

HOLT, J.

This is an action to recover damages for injuries suffered by the plaintiff on the night of December 15, 1929, when an automobile in which she was riding, driven by her husband, struck one of the poles of the defendant company. They were at that time returning to Hampton along the East Hampton-Buckroe Beach road. She recovered a verdict which the trial court, on motion, set aside, being of opinion that this pole upon that highway was not the proximate cause of injury. It then dismissed the case under authority conferred upon it by Code, § 6251.

This road is 30 feet wide. Along its center runs a cement pavement 16 feet wide.

From it a shoulder 4 feet 3 inches wide slopes to a ditch. This ditch is 2 feet wide at its top, 1 foot deep, measured from the surface of the pavement, and 9 inches deep, measured from the roadside shoulder. On its far side is an excess embankment about 5 inches high, probably made of dirt dug from the ditch, so that the outer edge, measured from its top, is about 17 inches deep. Its side nearest the road is a moderate slope; that on the far side is somewhat steeper. It is 7 feet from the edge of the concrete to the outer edge of the roadway. The pole, which was a little over 10 inches in diameter, stood on the line and projected 9 inches into the right of way. That is to say, for 9 inches it stood on this shoulder and across the ditch. By the highway and adjoining it, ran what is known as the Howard street road. That road was 40 feet wide and was a private way dedicated to the public but never accepted, and so was never a public way. Gaines v. Merryman, 95 Va. 660, 29 S. E. 738. In this private road the defendant's line of poles first ran, put there at some time between 1918 and 1921. This line of poles was moved from that location to where it now stands in 1927 or 1928. The road on which the accident occurred was established in 1921 or 1922.

Since the Howard street road was a private road the county had no authority to control the location of poles there and undertook to exert none, although their actual location followed conferences with the chairman of the board of supervisors and with the county surveyor.

The county gave no permission to locate the poles where they now stand, although that was done in accordance with a plat submitted to the county surveyor and approved by him.

Under section 1287, Code of 1887, telephone companies were given the right to place their poles in county roads, provided the ordinary use of such roads was not thereby obstructed, but the General Assembly, section 1290, of that Code, reserved the right to repeal, alter, or modify this privilege at pleasure. At an Extra Session of the Legislature, Acts 1902-03-04, p. 1000, c. 609, subch. 8, telephone companies were again given the right to construct, maintain, and operate lines along public roads, provided they did not interfere with their ordinary use, and provided further that the right to so place them was given by the proper board of supervisors by ordinance regularly adopted. This is the Jaw today. See Code, §§ 4035, 4037, as amended by Acts 1926, c. 549. In the Acts of 1904, p. 191, c. 106, boards of supervisors were given control, supervision, management, and jurisdiction over all county roads.

The board of supervisors of Elizabeth City county, on April 30, 1895, granted to the Hampton Telephone Company permission to construct, maintain, and operate its lino along any of the county roads of that county. That right the company then had under general law. The board, however, sought to ratify and reaffirm what had been done in 1895 by this blanket resolution, adopted on September 27, 1922:

"Be it resolved by the Board of Supervisors of Elizabeth City County, Virginia, that permission be and the same is hereby granted to the American Telephone and Telegraph Company of Virginia, its successors and assigns, to acquire, maintain, occupy and use such portion of the telephone and telegraph system and works of the Chesapeake & Potomac Telephone Company of Virginia, in place or hereafter constructed upon, along, in, under and through the roads, streets, highways, and other public places in the county of Elizabeth City, as the said American Telephone & Telegraph Company of Virginia may require in the conduct and prosecution of its business, under such arrangements as may be agreed to by the two companies.

"Provided, however, that when any new lines are to be established by the said American Telephone and Telegraph Company of Virginia, then and in that event the condition under which new work is to be done shall be first approved by the Board of Supervisors of Elizabeth City County."

This resolution, certainly as to new work, was little more than a restatement of the general law. New work had to be done under the supervision of the board of supervisors. "The condition under which new work is to be done shall be first approved by the Board of Supervisors of Elizabeth City County." There was here no such approval. It is true that the company acted in good faith. It recognized the limitation thus imposed upon it, but made this mistake. It secured the approval of the county surveyor when it should have secured that of the board of supervisors.

It is also true that on January 31, 1906, the Hampton Telephone Company conveyed all of its property rights, franchises, and privileges to the Southern Bell Telephone & Telegraph Company. For this there was statutory authority. See Pollard's Code of 1904, § 1105c, subsec. 2, subd. (e). The charter of that company was afterwards amended and its name was changed to the Chesapeake & Potomac Telephone Company of Virginia. Certainly so far as this case is concerned it enjoys the rights of its predecessors, whatever they may be. But these facts do not alter the situation. The pole which did the damage was planted without the consent of the board of supervisors of Elizabeth City county, and therefore without statutory consent and so was negligently placed (Standard Oil Co. v. Roberts, 130 Va. 532. 107 S. E. 838), and this although it may not have unnecessarily interfered with the use of this public highway as such; but negligence is not always actionable negligence, as we shall hereafter see. The trial court was of opinion that it must be the proximate cause of plaintiff's hurt, and was plainly right. Until that has been established, no recovery can be sustained, and upon failure to sustain that burden this case turns.

Plaintiff's husband, who was driving at a lawful rate of speed, undertook in a proper manner to pass a car ahead. When he was nearly abreast of it, that car suddenly turned to its left to avoid striking three soldiers coming down the road afoot. These men were, however, not seen by Mr. Wyatt until after the accident. When the car ahead turned to the left it was necessary for Mr. Wyatt to turn also. In doing this he ran off of the concrete across the road shoulder, into the ditch, and up upon the far bank, striking the pole with his left front wheel. He was not negligent, and even if it be conceded that he acted unwisely it was error in extremis.

With contributory negligence out of the way we come back to proximate cause. It is true that the defendant has violated the statute, and that plaintiff is given a right of recovery by Code, § 5785; but it gives no new right and was designed merely to prevent a wrongdoer from pleading that he had been already punished. It is still necessary that disobedience of a statute be the proximate cause of injury. Edwards v. Laurel Branch C. Co., 133 Va. 534, 114 S. E. 108; Hortenstein v. Virginia-Carolina R. Co., 102 Va. 914, 47 S. E. 996, 999.

Of course it is true that but for the location of this pole there would have been no accident, but its unlawful location and the happening of the disaster leaves the question of causal connection still open. The rule which controls its application is sometimes difficult to apply, but the governing principle is plain enough as the following authorities abundantly show.

In Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47, 120 N. E. 86, 88, 13 A. L. R. 875, Judge Cardozo said: "But even in jurisdictions where the liability is broader, its bounds are the reasonable and the probable. The wrongdoer may be charged with those consequences and those only within the range of prudent foresight. Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 256; Webb v. R., W. & O. R. R. Co., 49 N. Y. 420, 10 Am. Rep. 389."

"You are not to trouble yourselves with distant causes."

Space itself is measured not only longitudinally but by conditions also. No one could for a moment successfully claim that liability would follow had this pole been built behind obstructions apparently insurmountable.

In Milwaukee, etc., R. Co. v. Kellogg, supra, the court said: "But it is generally held, that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."

In Fowlkes v. Southern Railway Co., 96 Va. 742, 32 S. E. 464, 465, Keith, P., quoting with approval from Shearman & Redfield on Negligence, § 29, said: "The practical solution of this...