Wyatt v. Telephone Company
| Decision Date | 24 March 1932 |
| Court | Virginia Supreme Court |
| Parties | ELIZABETH YOUNG WYATT v. THE CHESAPEAKE AND POTOMAC TELEPHONE COMPANY, ETC. |
Present, Campbell, C.J., and Holt, Epes, Gregory and Chinn, JJ.
1. STREETS AND HIGHWAYS — Public Ways — Private Way Dedicated but not Accepted. — A private way, dedicated to the public but never accepted, is not a public way.
2. TELEGRAPHS AND TELEPHONES — Location of Poles — Private Ways — Authority of County. — A county has no authority to control the location of poles in a private road.
3. TELEGRAPHS AND TELEPHONES — Location of Poles — Authority of County — Approval of County Surveyor Instead of Board of Supervisors — Case at Bar. — The instant case was an action against a telephone company for damages for injuries incurred when the automobile in which plaintiff was riding struck a pole of defendant. Under sections 4035 and 4037 of the Code of 1930 the consent of the board of supervisors is necessary to authorize the erection of telegraph or telephone poles upon the public roads. In the instant case defendant company acted in good faith. It recognized the limitation thus imposed upon it, but made the mistake of securing the approval of the county surveyor when it should have secured that of the board of supervisors.
4. TELEGRAPHS AND TELEPHONES — Location of Poles — Authority of County — Approval of County Surveyor Instead of Board of Supervisors — Placing Pole without Authority Negligence — Case at Bar. — The instant case was an action against a telephone company for damages for injuries incurred when the automobile in which plaintiff was riding struck a pole of defendant. The pole which did the damage was planted partly upon a public road without the consent of the board of supervisors of the county, and therefore without statutory consent and so was negligently placed, and this although it may not have unnecessarily interfered with the use of the public highway as such.
5. NEGLIGENCE — Proximate and Remote Cause — Telephone Pole Placed in Road without County Authority — Case at Bar. — The instant case was an action against a telephone company for damages for injuries incurred when the automobile in which plaintiff was riding struck a pole of defendant. The pole had been placed in the road without the authority of the county supervisors. Negligence, however, is not always actionable negligence. To be actionable it must be the proximate cause of plaintiff's injury. Until that has been established, no recovery can be sustained, and in the instant case the trial court rightly held that the negligence of defendant was not the proximate cause of plaintiff's hurt.
6. AUTOMOBILES — Automobile Striking Telephone Pole — Negligence of Driver of Automobile — Case at Bar. — The instant case was an action against a telephone company for damages for injuries incurred when the automobile in which plaintiff was riding struck a pole of defendant. 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. When the car ahead turned to the left it was necessary for plaintiff's husband 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 telephone pole with his left front wheel.
Held: That plaintiff's husband was not negligent and even if it be conceded that he acted unwisely it was error in extremis.
7. AUTOMOBILES — Proximate and Remote Cause — Violation of Statute — Case at Bar. — The instant case was an action against a telephone company for damages for injuries incurred when the automobile in which plaintiff was riding struck a pole of defendant. Defendant had violated the statute by placing the pole where it was without the consent of the supervisors of the county, and by section 5785 of the Code of 1919 plaintiff was given a right of recovery. But it was still necessary that the disobedience of the statute be the proximate cause of the injury.
8. NEGLIGENCE — Proximate and Remote Cause — Consequences Which Could Reasonably have been Anticipated — Violation of Statute. — Negligence carries with it liability for consequences which, in the light of attendant circumstances, could reasonably have been anticipated by a prudent man, but not for casualties which, though possible, were wholly improbable. One is not charged with foreseeing that which could not be expected to happen; and this rule applies to the violation of a statute unless that violation be wanton or unless the statute be designed to protect some special class, like infants.
9. NEGLIGENCE — Proximate and Remote Cause — Violation of Statute — Proximate Cause Must be Established and Will not be Presumed. — While one who violates a statute or an ordinance may be regarded as a wrongdoer, and the act regarded as negligence, still it may or may not be the proximate cause of the injury complained of according to the facts of the particular case. The element of proximate cause must be established, and it will not necessarily be presumed from the fact that an ordinance or statute has been violated. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of by the plaintiff.
10. TELEGRAPHS AND TELEPHONES — Location of Poles — Approval of County Surveyor Instead of Board of Supervisors — Case at Bar. — The instant case was an action against a telephone company for damages for injuries incurred when the automobile in which plaintiff was riding struck a pole of defendant. The defendant was guilty of no wanton wrong. It placed its plans before the county surveyor and received his approval. The pole in judgment was planted so near the edge of the road that a part of it stood upon private property. To reach it the driver of the car had to leave the pavement, cross the dirt shoulder, go into the ditch and up and upon its far bank. From whatever be the angle of approach, no one could in reason have anticipated that it would be struck by an automobile, passing along the highway. This was the judgment of the trial court and is plainly right.
11. NEGLIGENCE — Questions of Law and Fact. — The general doctrine is, that whether one has been guilty of negligence or not is a mixed question of law and fact, to be determined by the court when the facts are undisputed or conclusively proved, but not to be withdrawn from the jury when the facts are disputed or the evidence is conflicting.
12. NEGLIGENCE — Proximate and Remote Cause — Questions of Law and Fact. — It has been said to be the general rule that what is the proximate cause of an injury is ordinarily a question for the jury; the court instructing them as to what the law requires to constitute it, and the jury applying the law to the facts. Where the facts are fairly incontrovertible the question of proximate or intervening cause is for the court. Where the facts of the particular case are disputable, and are of such character that different minds might reasonably draw different conclusions therefrom, a question of fact is presented properly determinable by the jury. But when the facts are undisputed and are susceptible of but one inference, the question is one of law for the court.
13. NEGLIGENCE — Proximate and Remote Cause — Questions of Law and Fact. — Case at Bar. — Where fairminded men may differ as to the facts or as to conclusions to be deduced therefrom, the case is for the jury, otherwise for the court. Upon it rests the burden of applying the law to facts undisputed and fully proven. In the instant case the pole of defendant which the car in which plaintiff was riding struck was in the road and placed there without the necessary statutory permit, and so was negligently placed, but its unlicensed location did not proximately contribute to plaintiff's hurt, nor was this affected by her abstract right to use the entire highway. Therefore, the court properly assumed the burden of applying the law to the undisputed facts and there was no error in its setting aside the verdict for plaintiff.
Error to a judgment of the Circuit Court of Elizabeth City county, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.
The opinion states the case.
Montague & Holt and J. Winston Read, for the plaintiff in error.
Lett, Murray & Ford and McGuire, Riely & Eggleston, for the defendant in error.
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 the highway was not the proximate cause of injury. It then dismissed the case under authority conferred upon it by Code, section 6251.
This road is thirty feet wide. Along its center runs a cement pavement sixteen feet wide. From it a shoulder four feet, three inches wide, slopes to a ditch. This ditch is two feet wide at its top, one foot deep, measured from the surface of the pavement, and nine inches deep, measured from the roadside shoulder. On its far side is an excess embankment about five inches high, probably made of dirt dug from the ditch, so that the outer edge, measured from its top, is about seventeen inches deep. Its side nearest the road is a moderate slope; that on the far side is somewhat steeper. It is seven feet from the edge of the concrete to the outer edge of the roadway. The pole, which was a little over ten inches in diameter, stood on the line and projected nine inches into the right of way. That is to say, for nine inches it stood on this shoulder and across...
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