Opinion by
Mr. Justice Mestrezat,
On the evening of July 17, 1903, a party of twenty-seven young ladies and gentlemen drove from Gallery to Harmony, a distance of about eight or nine miles, in Butler county, to attend a social function at the latter place. The vehicle was a farmer’s ordinary hay wagon, and was drawn by two horses. [234] The rack or ladders on the wagon were covered with hay and the members of the party were seated at different places on the hay. Frank Kramer drove the team on this occasion. He was a window-glass cutter by trade, but at this time was in the employ of the Ball & Cooper Coal Company, the owner of the horses and wagon which carried the party to Harmony. While he was the driver of the team, the evidence does not show that he was a member of the party, nor does it show all the persons who composed the party. Nor is it disclosed by the evidence whether the owner of the team furnished it gratuitously for the occasion or was compensated for its use, or whether Kramer was paid for his services as driver, or whether they were rendered without compensation.
The party left Harmony about midnight to return home. As the wagon was passing along the public road it came in contact with one of the defendant’s telephone poles — “ slightly, just enough to allow it to slide past ” — and Miss Little, the plaintiff, was struck by the pole, knocked from the wagon and injured. The pole was on the west side of the highway and she was seated on that side of the wagon with her feet extending about a foot out over the bow of the hay rack, which was over the rear wheel. Kramer sat in front and was driving in a slow trot. The road where the accident occurred is a public highway and runs north and south along a hill side which descends from east to west. The width of the traveled part of the road east of the pole, exclusive of the gutter on the east side, is about thirteen or fourteen feet and is practically level, except possibly a slight descent from the west to the east side with a slight rise in the middle. Brush grows on both sides of the road. The telephone line was constructed at this point in 1896.
The plaintiff’s statement avers that the road where the accident occurred “ is a regularly ordained, laid out, opened, used and traveled public highway,” and that the defendant company negligently and unlawfully placed the pole “ in and upon the said public road and upon the usual traveled portion of the said road and the said defendant company has negligently, wrongfully and unlawfully maintained the said telegraph or telephone pole in and upon the said public road and the traveled portion thereof for several years last past and yet continues to so maintain the same.” It is claimed that the alleged negligent action [235] of the defendant company in placing its pole on the public highway caused the injury sustained by plaintiff for which this suit was brought.
On the trial of the cause, the court submitted to the jury, with very full instructions, the alleged negligence of the defendant company as well as that of the plaintiff. The result was a verdict for the plaintiff, and the defendant has appealed, claiming that the court erred in the admission of certain testimony, in the charge to the jury, and in the answers to its first, fourth, sixth and eighth points, the last of which requested binding instructions for the defendant company.
We have read very carefully the testimony and cannot see how the case could have been withdrawn from the jury. The credibility of the witnesses was for the jury and there was sufficient testimony, if believed, to warrant the finding that the telephone company had placed its telephone pole on the traveled portion of the highway, or in such close proximity to it as to endanger the safety of persons using the road, or, in the language of the act of 1874, “as to incommode the public use of said road.” Without quoting the testimony it is sufficient to say that several of the witnesses testified to this fact. While these witnesses vary in their estimates of the distance from the west side at which the pole stands within the traveled part of the road, they all say it is on the traveled part of the highway and that it is an obstruction to the use of the road by the public. The question was therefore for the jury.
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Opinion by
Mr. Justice Mestrezat,
On the evening of July 17, 1903, a party of twenty-seven young ladies and gentlemen drove from Gallery to Harmony, a distance of about eight or nine miles, in Butler county, to attend a social function at the latter place. The vehicle was a farmer’s ordinary hay wagon, and was drawn by two horses. [234] The rack or ladders on the wagon were covered with hay and the members of the party were seated at different places on the hay. Frank Kramer drove the team on this occasion. He was a window-glass cutter by trade, but at this time was in the employ of the Ball & Cooper Coal Company, the owner of the horses and wagon which carried the party to Harmony. While he was the driver of the team, the evidence does not show that he was a member of the party, nor does it show all the persons who composed the party. Nor is it disclosed by the evidence whether the owner of the team furnished it gratuitously for the occasion or was compensated for its use, or whether Kramer was paid for his services as driver, or whether they were rendered without compensation.
The party left Harmony about midnight to return home. As the wagon was passing along the public road it came in contact with one of the defendant’s telephone poles — “ slightly, just enough to allow it to slide past ” — and Miss Little, the plaintiff, was struck by the pole, knocked from the wagon and injured. The pole was on the west side of the highway and she was seated on that side of the wagon with her feet extending about a foot out over the bow of the hay rack, which was over the rear wheel. Kramer sat in front and was driving in a slow trot. The road where the accident occurred is a public highway and runs north and south along a hill side which descends from east to west. The width of the traveled part of the road east of the pole, exclusive of the gutter on the east side, is about thirteen or fourteen feet and is practically level, except possibly a slight descent from the west to the east side with a slight rise in the middle. Brush grows on both sides of the road. The telephone line was constructed at this point in 1896.
The plaintiff’s statement avers that the road where the accident occurred “ is a regularly ordained, laid out, opened, used and traveled public highway,” and that the defendant company negligently and unlawfully placed the pole “ in and upon the said public road and upon the usual traveled portion of the said road and the said defendant company has negligently, wrongfully and unlawfully maintained the said telegraph or telephone pole in and upon the said public road and the traveled portion thereof for several years last past and yet continues to so maintain the same.” It is claimed that the alleged negligent action [235] of the defendant company in placing its pole on the public highway caused the injury sustained by plaintiff for which this suit was brought.
On the trial of the cause, the court submitted to the jury, with very full instructions, the alleged negligence of the defendant company as well as that of the plaintiff. The result was a verdict for the plaintiff, and the defendant has appealed, claiming that the court erred in the admission of certain testimony, in the charge to the jury, and in the answers to its first, fourth, sixth and eighth points, the last of which requested binding instructions for the defendant company.
We have read very carefully the testimony and cannot see how the case could have been withdrawn from the jury. The credibility of the witnesses was for the jury and there was sufficient testimony, if believed, to warrant the finding that the telephone company had placed its telephone pole on the traveled portion of the highway, or in such close proximity to it as to endanger the safety of persons using the road, or, in the language of the act of 1874, “as to incommode the public use of said road.” Without quoting the testimony it is sufficient to say that several of the witnesses testified to this fact. While these witnesses vary in their estimates of the distance from the west side at which the pole stands within the traveled part of the road, they all say it is on the traveled part of the highway and that it is an obstruction to the use of the road by the public. The question was therefore for the jury.
The right of the defendant company to place its poles on the public highways of the state is statutory, and while the act conferring the franchise must not be construed so as to defeat the grant, yet the company must exercise its franchise within the statutory limitations. The authority by which a telegraph or telephone company is empowered to construct its lines on the public highways of this state is conferred by the Act of April 29, 1874, P. L. 92, 2 Purd. Dig. 2001, the thirty-third section of which provides that “such corporation shall be authorized. ... to construct lines of telegraph along and upon any of the public roads, streets, lands or highways .... within the limits of this state, by the erection of the necessary fixtures, including posts .... for sustaining the cords or wires of such lines, but the same shall not be so constructed as [236] to incommode the public use of said roads, streets or highways . . . . ” There can be no doubt as to the proper interpretation and. the meaning of this legislation. The language is explicit and the purpose of the statute is manifest. The power to construct its lines “ along and upon ” a public highway is granted to the corporation in plain terms. Such was the evident purpose of the act. But equally clear and explicit is the language employed by the legislature in the enactment in prescribing a limitation upon the power of such corporation to enter and construct its lines upon the highways of the state. Its right to use the public highways in the construction and maintenance of its lines was qualified and prohibited to the extent that the public should not be inconvenienced in the proper use of the highways. Its line, says the act, “ shall not be so constructed as to incommode the public use of said roads, streets or highways.” This limitation made the use of highways by a telegraph company secondary and subordinate to that of the public for which the roads of the state were primarily intended. The legislature did not intend, by this legislation, to deprive the public of the use o'f the highways for any proper and reasonable means of travel, but intended that the franchise granted telegraph companies by the act'should be exercised in subordination to the rights of the public on the roads of the state. Such, we think, was the manifest purpose of the act of 1874. A like interpretation was put upon a similar statute of Ohio by the supreme court of that state in Cincinnati Inclined Plane Railway Company v. Telegraph Association, 29 Am. St. Rep. 559. In that case Mr. Justice Dickman, delivering the opinion of the court, says (p. 567) : “ The authority given by statute to a telephone company to construct its lines from point to point, along and upon any public road, under the continuing prohibition that ‘ the same shall not incommode the public in the use of such road,’ would plainly indicate an intention on the part of the legislature that the company shall exercise such franchise with reference to the comfort and convenience of the traveling public, and shall not, in any manner, abridge or impair the use, by the public, of the most approved methods of travel and transportation. And a reasonable interpretation of the statute would lead to the conclusion, that to impair the public enjoyment of an approved method of con[237] veyance on the streets -would be in derogation of the statutory prohibition that the public shall not be incommoded in the use of the roads or highways.”
The errors assigned to the charge raise the question of the proper interpretation of the act of 1874, but we think the learned judge construed the act substantially in conformity with what is said above.
In the case at bar it conclusively appeared from the evidence that there was ample space along the highway for placing the pole in question without planting it in the traveled part of the road, or so near to it that it would inconvenience or interfere with those who might use the highway. The legal width of the road is thirty-three feet, and but seventeen feet were used for the roadway and for the gutter on the east side. The evidence did not disclose on which side of the traveled part was the unused portion of the thirty-three feet. It is apparent, however, that there was no necessity for placing the pole in a position that would obstruct the use of the road.
The plaintiff’s negligence was a question for the jury. It is not of itself negligence for a person riding in a wagon on a public highway to permit his feet or arms to extend beyond the side of the vehicle. When one is injured while occupying such position it is for the jury to determine whether he was, at the time, exercising the care required by the circumstances, unless the danger was so apparent that a reasonably prudent person would not have taken the risk. In that event, the court may hold him negligent as a matter of law. Here the testimony clearly sent the question to the jury. Nor can the driver’s negligence be imputed to the plaintiff under the facts disclosed by the testimony in the case. The evidence shows simply that at the time plaintiff' was injured she was being carried in a private conveyance owned by the coal company, which was driven "by a person engaged in the company’s service. Under such circumstances it is settled by recent decisions of this court that the negligence of the driver is not imputable to one who is injured while being carried in the conveyance : Carlisle Borough v. Brisbane, 113 Pa. 544; Dean v. Pennsylvania Railroad Co., 129 Pa. 514 ; Jones v. Lehigh & New England Railroad Co., 202 Pa. 81.
We see no error in the court’s answers to the defendant’s [238] first, fourth and sixth points. If there was error in admitting the testimony of John Ficht, a witness for the plaintiff, which is the subject of the first assignment, it was cured by the immediate order of the court striking out the testimony.
The assignments of error are overruled and the judgment is affirmed.