Mize v. Rocky Mountain Bell Telephone Co.

100 P. 971, 38 Mont. 521, 1909 Mont. LEXIS 47

• Court: Montana Supreme Court
• Decided: April 3, 1909
• Docket: 2,657
• Status: Published

Opinion

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On May 20, 1907, and for some time prior thereto, the defendants Rocky Mountain Bell Telephone Company, hereinafter referred to as the “Bell company,” maintained a telephone exchange in Bozeman, and owned and maintained pole lines in various streets and alleys and had wires suspended from such poles, as a part of its telephone system. At all such times the Gallatin Light, Power and Railway Company, hereinafter referred to as the “Light Company,” owned and operated an electric light and power plant, and, as a part' of its plant, it owned ánd maintained certain pole lines in the streets and alleys of Bozeman and the wires attached to such poles. At all such times the Bozeman Milling Company and the Benepe-Stanton Grain Company, hereinafter referred to as the “private companies,” owned and operated a private telephone line from Bozeman to Belgrade, a distance of eleven or twelve miles. On May 20, 1907, John Mize was killed at a point near the private telephone line and nine or ten miles from Bozeman. His wife, as administratrix of his estate, brought this action against the Bell company and the light company to recover damages. It is alleged in the complaint that for a period of about two years prior to and including May 20, 1907, the Bell company had assumed and •exercised full charge, supervision, and control of the private telephone wire from Third Avenue North, to Tracy Avenue North, a distance equal to three city blocks, in the city of Bozeman. It appears from the complaint that the portion of the private telephone line just mentioned was strung upon poles belonging to the Bell company, which poles were set along an alley cutting both Third Avenue and Tracy Avenue at right angles. It appears also that the light company had wires strung to poles along Grand Avenue North — an avenue running parallel with and between Third and Tracy Avenues and cut by the alley at right angles also. On May 20, 1907, the private telephone wire, which crossed above the light wires at right angles, became detached from the Bell company’s poles, near the intersection of the alley and Grand Avenue, fell upon a wire belonging to the light company, and received a charge of about two thousand volts of electricity from the light wire. About nine or ten miles from Bozeman, the private telephone line, following the course of the public road, turned from north to west. For the purpose of securing the corner pole, a guy wire was attached to the pole near the top and between the two private wires, and then attached to a fence post on the outer line of the right of way of the Northern Pacific Railway Company. It appears that the guy wire touched one of the private telephone wires and also came in contact with one strand of fence wire. This fence ran south a short distance where it connected with another wire fence, called the “inner right of way fence,” and at a point on this inner right of way fence, about three-fourths of a mile from the point of intersection of the two fences, John Mize was at work in an irrigating ditch belonging to his employer, Young, on the late afternoon of May 20, 1907, when, coming in contact with a wire on the fence, he was killed. It is alleged that the current of electricity received by the private telephone line wire from the light wire was conducted along the telephone wire to the guy wire, thence over the guy wire to the outer right of way fence wire, thence over that wire to the wire of the inner right of way fence, and along the wire of the inner right of way fence to the point where Mize was at work, and that when he came in contact with this wire he received the charge of electricity and was killed thereby. It is charged that the defendants were negligent in the following particulars: 1 (a) The Bell company in permitting this private telephone wire to become detached from its poles, (b) The light company in permitting the insulation on its wires to become defective. (2) In failing to provide a guard or device at the point where the wires crossed, to prevent the wires from coming in contact. (3) In violating a city ordinance of the city of Bozeman. (4) In failing to break the contact between the two wires for a period of six hours or more. From a judgment rendered and entered in favor of the plaintiff, and from an order denying them a new trial, the defendants have appealed.

A review of the authorities cited would not serve any useful purpose. There is not any substantial conflict in the authorities upon the general rules of law applicable in negligence cases, and we might select cases from the briefs of appellants or respondent in support of the principles which we announce, with one or two possible exceptions. The difficulty which the courts generally experience is, not in ascertaining the rules of law, but in applying them to the facts of particular cases.

1. Legal duty: It is urged by counsel for appellants that they did not owe any legal duty to Mize. This contention is aptly answered in City Electric St. Ry. Co. v. Conery, 61 Ark. 381, 54 Am. St. Rep. 262, 33 S. W. 426, 31 L. R. A. 570, a ease in many respects similar to the one before us. The street railway company maintained a power line through certain streets in Little Eoek. White owned a private telephone line running at right angles to one of the railway company’s lines. The private telephone wire came in contact with the power line and received a supercharge of electricity. Conery came in contact with the private telephone wire and was injured. He recovered against the street railway company and White, the owner of the private telephone wire. On appeal by the street railway company the question now before ns was raised. The court said: “The next question is: Upon what duty of the appellant to the appellee can this action be based? The answer to it is: Upon the duty enjoined by the rule which requires everyone to so use his property as not to injure another. The applicability of this rule may be shown by many illustrations. One is where an owner of a vicious animal accustomed to do hurt, knowing his habits, negligently allows him to escape. He is responsible for the mischief the animal does, because it was the duty of the owner to keep him secure. * * * This rule applies with equal force to electric companies. They are bound to use reasonable care in the construction and maintenance of their poles, cross-arms, and wires, and other apparatus, along streets and other highways. They are required to do so for the protection of persons and property.” (21 Am. & Eng. Eney. of Law, 2d ed., 476.)

2. Proximate cause: One of the principal contentions made in this case is that, assuming the negligence of the defendants, such negligence was not the proximate cause of Mize’s death, for the reason that the guy wire intervened and broke the causal connection between the negligence of the defendants and the death of Mize. The proximate cause of an injury is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which the injury would not have occurred. (Goodlander M. Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583; 1 Shearman & Redfield on Negligence, sec. 26; 6 Current Law, 757; Missouri Pac. Ry. Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399; Claypool v. Wigmore, 34 Ind. App. 35, 71 N. E. 509.)

What intervening cause will break the chain of sequence and so far insulate the first wrongdoer’s negligence from the injury as to relieve such wrongdoer? The courts have experienced some difficulty in answering this inquiry, and they are not altogether in harmony upon the subject; but to this extent they may be said to agree: That to relieve the original wrongdoer the result must be such that he could not reasonably have anticipated it. In 29 Cye. 499, the rule is stated as follows: “The mere circumstance that there have intervened between the wrongful cause and the injurious consequence acts produced by the volition of animals or persons does not necessarily make the result so remote that no action can be maintained. The test is not to be found in the number of intervening events or agencies, but in their character and in the natural connection between the wrong done and the injurious consequence, and if such result is attributable to the original negligence as a result which might reasonably have been foreseen as probable, the liability continues.’’ What ought to be foreseen or anticipated as the probable consequence of the wrongdoer’s negligence? In the first instance, it is not necessary to show that he ought to have anticipated the particular injury which did result; but it is sufficient to show that he ought to have anticipated that some injury was likely to result as the reasonable and natural consequence of his negligence. This is the meaning of section 6068, Revised Codes, and expresses the rule announced by this court in Reino v. Montana M. L. Dev. Co., ante, p. 291, 99 Pac. 853.

The evidence is conclusive upon one point: That with the current of electricity necessary to operate this private telephone line, and telephone lines generally, the wires are entirely harmless. The evidence also shows that telephone wires are frequently exposed where persons — even children — may come in contact with them. The defendants are chargeable with knowl edge of these facts, and therefore chargeable with knowledge that this private telephone line itself was, or wires leading from it were, likely to be so placed that persons might rightfully come in contact with one or more of them. In our view of this case, the manner in which the guy wire was attached is not of any consequence. If, as shown by the evidence, the current of electricity necessary to operate this private telephone line was harmless, then the owners of the private line might have attached their wires directly to the fence posts of the inner right of way fence (if they had permission to do so). We say this to emphasize our view that these defendants were chargeable with the consequence which might reasonably be expected to follow the charging of this private wire with a dangerous current of electricity, in view of the fact that telephone wires are likely to be exposed where persons, rightfully about their business, may come in contact with them. It will not do for defendants to say that they could only expect that this dangerous current would be carried over the private line, eighteen or twenty feet above the ground, to Belgrade. They were chargeable with knowledge that the current would go wherever there was a metallic substance to conduct it; and while it is not necessary in this ease to adopt the broad rule announced by Shearman & Redfield on Negligence, section 29, to the effect “that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not) would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind,” we do go to the extent of saying that these defendants ought reasonably to have anticipated that, by their negligence in permitting this private wire to become charged with a dangerous current of electricity, serious injury would result to some one if in fact the private wire, or a wire leading from it, was exposed as it might be exposed.

3. Was Mize a trespasser ? The evidence shows that Mize met death while at work in an irrigating ditch. The portion of the ditch in which he was at work at the time of his death is over and upon a portion of the right of way of the Northern Pacific. Bailway Company. Concerning this ditch, Young, the employer of Mize, testified: “I remember the occasion of his death. He was working for me at that time. * * My irrigating ditch is on the south side of the road and on the north side of the road also. Crossing the road it runs through a flume, and this ditch is made out of rocks, and he was cleaning this ditch when he came in contact with this fence, John Mize’s work would call him to the place where he was killed. * * * I found him lying under the fence dead. That ivas the right of way fence. He was lying with his body toward the flume, but he was as well as over the fence before that, kind of on his back in the irrigating ditch. * * • * It is my ditch, and heads not in a slough, but in a regular running stream there near the railroad track.” This evidence was not contradicted in any way and is sufficient to make out a prima facie ease that Mize was not a trespasser; but counsel for appellants insist that the railway company cannot alienate any portion of its right of way, and therefore Mize must be presumed to have been a trespasser, and Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, is cited. But that case is only authority for the proposition that title to a portion of such right of way cannot be acquired by adverse possession. It may be conceded that the Northern Pacific Bailway Company cannot alienate its right of way, or any part of it, so as to interfere with the full performance of the functions of the railway; but that an additional servitude may be imposed upon a portion of such right of way, or that the railway company may grant a license for such use of its right of way as will not interfere with the proper operation of its railway system, we entertain no doubt.

4. Measure of damages: Over the objection of defendants, the court permitted evidence to be introduced tending to show the marital relations of plaintiff and her husband up to the time of Mize’s death, and in instruction 34 the court advised the jury that, if they found for the plaintiff, then, in estimating the damages, they might take into consideration the pecuniary loss, if any, of the widow on account of her being deprived of the comfort, protection, society and companionship of her husband. In each of these instances we think the trial court was correct. Section 6486, Revised Codes, provides that “such damages may be given as under all the circumstances of the case may be just.” The authorities are not harmonious upon this question, but in California, where they have a statute similar to our section 6486 above, the rule announced has been in force for many years. (Beeson v. Oreen Mt. G. Min. Co., 57 Cal. 20; Cook v. Clay St. H. R. Co., 60 Cal. 604; Cleary v. City R. Co., 76 Cal. 240, 18 Pac. 269; Munro v. Pacific C. etc. Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303; Morgan v. Southern Pac. Co., 95 Cal. 510, 29 Am. St. Rep. 143, 30 Pac. 603, 17 L. R. A. 71; Lange v. Schoettler, 115 Cal. 388, 47 Pac. 139; Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 47 Pac. 1023; Wales v. Pacific Elec. M. Co., 130 Cal. 521, 62 Pac. 932, 1120; Green v. Southern Pac. Ry. Co., 122 Cal. 563, 55 Pac. 577; Green v. Southern Cal. Ry. Co. (Cal.), 67 Pac. 4; Dyas v. Southern Pac. Co., 140 Cal. 296, 73 Pac. 975; Evarts v. Santa Barbara C. R. Co., 3 Cal. App. 712, 86 Pac. 830.) While not directly deciding the question, this court, in Hollingsworth v. Davis-Daly Estates Copper Co., ante, p. 143, 99 Pac. 142, intimated that the rule we have announced would be followed.

5. Form of verdict: The verdict in this case reads as follows: “We, the jury in the above-entitled cause, find the issues herein in favor of the plaintiff, Georgie Mize, and against the defendants, Rocky Mountain Bell Telephone Company and Gallatin Light, Power and Railway Company, on each and all of the four causes of action set forth in the complaint herein, and fix and assess her damages at the sum of six thousand dollars ($6,000.00).” The complaint is drawn in four separate counts or causes of action, but in fact it states but a single cause of action and specifies separately the acts of negligence. While under our Code practice there may arise cases in which it is proper to set forth a single cause of action in separate counts, this is clearly not such a case. The verdict, too, is unusual in form; but these defects, we think, are not such as could have prejudicially affected the rights of either defendant. The verdict is in effect a general verdict and is sufficient. (5 Ency. of PL & Pr. 339; Lancaster v. Connecticut Mut. L. Ins. Co., 92 Mo. 460, 1 Am. St. Rep. 739, 5 S. W. 23.)

6. Instructions: Exceptions were taken by the appellants to-the action of the trial court in giving certain instructions and in refusing to give instructions asked by defendants; but, after a careful review of the instructions given and refused, we are unable to find any error prejudicially affecting the rights of either appellant. The charge, as a whole, seems to us to present the law of the case fairly.

7. The evidence: Without rehearsing the evidence, it is sufficient to say that in our opinion it is ample.to sustain the verdict. It tends to show such supervision and control of the private wire by the Bell company, at the point where the two wires came in contact, as renders that company liable for its negligence in permitting the wire to become detached and to fall upon the light wire. It is also sufficient to show the negligence of the light company in failing to keep its wire properly insulated. It is sufficient to go to the jury upon the question of the negligence of both defendants in failing to break the contact between the wires for many hours after they came in contact and before Mize’s death.

There was a palpable violation of the city ordinance, and neither of these defendants can escape liability by saying that the ordinance applies only to the other. While the ordinance is a grant of a franchise to the Bell company, it is more than that. Section 5 provides: “Whenever it is necessary for any electric light or power wire to approach or cross the line of any fire alarm, police telegraph, telegraph or telephone wires, the same shall not approach to or cross either of said wires at a distance of less than four feet either above or below said fire alarm police telegraph, telegraph or telephone wire.” This provision is a general municipal law applicable to both of these defendants (H ayes v. Michigan Cent. Ry. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410; Heidt v. Southern Telephone Co., 122 Ga. 474, 50 S. E. 361; Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 32 Am. St. Rep. 348, 11 South. 51, 16 L. R. A. 43), and its violation was prima facie negligence (Commonwealth, Electric Co. v. Rose, 214 Ill. 545, 73 N. E. 780; 1 Thompson on Negligence, sec. 1196; 1 Shearman & Red-field on Negligence, sec. 13).

It is clear from this evidence that neither of these defendants took any precaution to prevent the wires, where they crossed, from coming in contact, other than to fasten the wires to poles. In 1 Joyce on Electricity, section 490a, the author says: “Where electric wires are maintained by different companies in the streets, obligations are by law imposed upon each, not only with respect to the others, but also to individuals and to the public in general to prevent a contact of the wires, which may result in injury to property or person. The question as to the duty of such companies arises most frequently where an injury has resulted from the contact of a telegraph or telephone wire with an electric light or trolley wire by which the dangerous current of the latter is conveyed into the former. From a consideration of the several cases in which the liability of a company under such circumstances is considered, the rule may be deduced that, where companies of such a characteroecupy the streets with their poles and wires, each company is under the obligation to exercise reasonable or due care — that is, a degree of care which is reasonable in view of the circumstances and commensurate to the dangers and risks involved— to prevent its wires from coming into contact with the wires of another company, and that a company which has been negligent in the performance of its duty in this respect will, in the absence of contributory negligence on the part of the persons injured, be liable for the injury resulting from such contact. ’ ’

The evidence was amply sufficient to show negligence on the part of the Bell company in failing to use well-known simple devices to prevent the private wire from coming in contact with the high tension wire of the light company. The evidence upon this point, so far as it relates to the light company, is very slight; but, after all, it was a question for the jury, under all the circumstances of the case, to say whether the light company had used reasonable care to prevent the contact of the two wires. In discussing this subject in a case arising from an injury received from crossed wires, the supreme court of Wisconsin, in Block v. Milwaukee St. Ry. Co., 89 Wis. 371, 46 Am. St. Rep. 849, 61 N. W. 1101, 27 L. R. A. 365, said: “The negligence which is alleged and claimed against the defendant is its omission to place guard wires over its trolley wires in such a way as to prevent the telephone wires, in case of their falling from any cause, from falling upon and coming in contact with the trolley wires. # * * No doubt it is the duty of the defendant to use such customary and approved appliances as are known and used in the business of operating electric railways. So far as reasonable knowledge, in the present state of the science and the practical use of electricity as a motive power for street railways, and reasonable foresight, can go, it is bound to guard the public against the perils attendant upon this use of electricity; but it is liable only for what is known as reasonable care. The present state of the science, and the present practical knowledge of the most practical and effectual means and methods of guarding against such perils as are incident to its use, are a most important element in the question of what is reasonable care. In the present condition of the science and of the practical knowledge on this subject, it cannot be said, as matter of law, what method of guarding the wires shall be required, nor whether any guards shall be required, for it is not known to the law that any method now known will prove effective; but it is a question for the jury, under all the facts in the cause, to determine whether the method actually used was negligent.”

The case of Hamilton v. Bordentown Electric Light Co. et al., 68 N. J. L. 85, 52 Atl. 290, presents facts very similar to those in the case before us. For brevity the companies are referred to as the “light company,” the “telegraph companies,” and the “telephone company.” It appears that the low tension wire of the telegraph companies crossed above the high tension wire of the light company, and some distance away crossed under the low tension wire of the telephone company. The telegraph wire was permitted to come in contact with the wire of the light company and received a supercharge of electricity. The telephone wire came in contact with the telegraph wire and likewise received a dangerous current. Plaintiff’s intestate, attempting to remove the telephone wire, was killed. The light company and the telegraph companies were held liable, and. speaking of their duty, the court said: “It is assumed that the defendants were each maintaining wires in the public highways in the exercise of a franchise. Hence each was bound to take reasonable care not to injure other users of the street. It was the duty of the electric light company to use reasonable care that other uninsulated telegraph wires that crossed it should not be alloAved to come in contact with its wire, which was insulated, and which carried a powerful electric current, and remain for so long a time in contact therewith as to wear away the insulation and divert the poAverful current to the telegraph wire, to the probable injury of persons who should come in contact with the telegraph wire, or in contact with other wires which might be brought in touch with the charged telegraph wire. It was the duty of the three companies maintaining the telegraph wire to use reasonable care to prevent their wire from coming in contact Avith the highly charged electric light wire and remain in contact therewith in such a way and for so long a time as to wear off the insulation and divert the current to its OAvn wire, to the danger of those who should touch it or touch another Avire with which it might come in contact. (New York etc. Telephone Co. v. Bennett, 62 N. J. L. 742, 42 Atl. 759.)” (See, also, Western Union Tel. Co. v. State, 82 Md. 293, 51 Am. St. Rep. 464, 33 Atl. 763, 31 L. R. A. 572.) But in the view we take of this complaint, it was not necessary for plaintiff to prove every act of negligence charged. She did prove to the satisfaction of the jury facts sufficient to show that the negligence of these defendants directly produced the death of Mize.

The ease was fairly submitted, and the correct result appears to have been reached. The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.