Postal Telegraph-Cable Co. v. Battle Creek Gas Co.

Butzel, C. J. I am not in accord with the foregoing opinion except in its holding that defendant is responsible for the damage done to plaintiff’s cable at a point near the Baptist church, 78 feet west of manhole 20.' The evidence overwhelmingly sustains that conclusion. As to the other alleged injuries to the cables, I think sufficient proofs were presented to justify the findings of the trial judge. *488 From the somewhat unclear description in the record, plaintiff’s cable connections appear to have been made up of a number of individual wire strands, surrounded by lead sheathing. These were placed in a waterproof fiber conduit having an inside diameter of three inches. The entire conduit in turn was surrounded by a concrete envelope of a thickness of three inches on the sides and bottom, and four inches across the top. The cables were buried at various depths and at various proximity to the gas mains of defendant company. 1. Damage to calóle six feet west of manhole 21: At this point a test hole was dug when the cable failed for the second time, and a piece thereof was removed. This was introduced into evidence. It reveals a break in the outer sheathing, a break of three inside wires, and contact between another wire and the armor, which caused a ground in the electric circuit. The sheath was broken approximately 2% inches from the surface; it was crushed and cut. The wire first failed on February 7, 1934, but the trouble was discovered and the strands were switched, thus preserving the connection. On March 5, 1934, however, the wires failed completely. The cable lay two feet below the level of the street, a position in which it would ordinarily be unaffected to any marked extent by pressures from the surface. There was considerable testimony that the abrasions noticed in the exhibit were such as would have been caused by a sharp instrument piercing the concrete and the frail fiber duct. Natural forces, such as rust, frost and deterioration, do not produce effects like those presented in the court below. Nor does vandalism or roguery usually indulge itself 24 inches under ground. The inference is compelling that the wires were negligently injured by some human agency operating in the vicinity. According to *489 plaintiff’s proofs, the defendant was the only utility having occasion at the time to undertake work in the vicinity, and was the only utility which had done such work for a reasonable period prior to the failure of the wires. Defendant had been working with men who were not experienced in the installation and repair of gas mains and conduits. Admittedly, they had worked to install gas mains on January 16, 1934, less than three weeks prior to February 7, 1934. It was further shown that defendant caused a trench to be dug to install a so-called drop or drip line at about the same level as plaintiff’s cable and along the same street. Defendant’s employees testified, however, that this work was completed on a Sunday, February 11, 1934, which was four days after the first failure of the wires. While our consistent refusal to find negligence from the mere occurrence of an accident should not be relaxed, we are bound to give full effect to the normal weight of probability and circumstance. For subterranean occurrences of the kind here involved we cannot expect nor demand the testimony of eyewitnesses. As we held in Oleksza v. Nolan, 258 Mich. 240, where plaintiff claimed the negligent installation of a sewer was responsible for subsequent sinking of his house: “It is not an application of the doctrine of res ipsa loquitur to find negligence from a condition which is shown to have existed and which could have caused the damage, and all other possible explanations are excluded.” The coincidence of the trench dug by defendant and its other work with the location of plaintiff’s cable at this point was competently established. The remaining question is simply one of temporal coincidence. *490 Defendant urges that its installation of lateral mains was completed on January 16th, that the trench was not dug until February 11th, and therefore it could not have been responsible for the failure of the wires on February 7th. In the first place, it should be noted that even this argument does not explain away the subsequent failure of the wires on March 5th. More importantly, this theory is based upon the hypothesis that the wires must have failed at the moment they were injured or severed. Without conclusive supporting proofs, I cannot accept such an evidential assumption. Although there is no occasion to discuss these possibilities, it is probable that the end points of the wire strands inclosed in a fiber conduit in frozen ground two feet below the surface could remain in physical contact with each other although they had been severed. A change in temperature, or tension elsewhere on the wire, would then be sufficient to cause the contact to be broken. That the effects of negligence do not become manifest until days after the act does not avoid liability. See Nephew v. Consumers Power Co., 283 Mich. 12, where facts and circumstances were held to support the legitimate conclusion of a jury that defendant’s employee had failed to close a shut-off gas valve more than two and a half years before it resulted in the asphyxiation of plaintiff’s decedent. Finally, defendant’s contention is supported simply by the statement of one employee that the trench was dug on a Sunday, four days after the initial failure of the cable. Although there was no positive contradiction of this testimony in terms, in the light of all the other persuasive circumstances establishing defendant’s activities at this and other points where plaintiff’s cables lay, it is clear that the trial court felt that defendant’s witness was mistaken. The judge was better able to weigh his cred *491 ibilitythan are we, and particularly, since defendant’s superintendent admitted that other of its records “get balled up” at times, his evaluation of the total testimony should not be disturbed. 2. Damage to cable 237 feet west of manhole 21: The evidence is even stronger that defendant was responsible for the damage at this point. On March 5, 1934, “swinging trouble” in plaintiff’s lines was reported to its foreman. This condition was caused by water entering the cable and circulating from one to another line. In the afternoon of the same day the wires had “gone out wet,” or became grounded because of seepage. Bepairmen finally located the trouble at this point and discovered that the waterproof fiber conduit had been punctured in several places by a sharp instrument, thereby admitting moisture to the wires themselves. Defendant had previously done work in this vicinity which required the use of picks and tunneling devices. Defendant again disclaims activity in the neighborhood at the moment of the failure of the wires. Obviously, to cause damage to the waterproof protection of the cable which would become manifest only when water had seeped through the perforations, it was not necessary that the injury be inflicted the same day that the wires failed. The testimony was conflicting as to whether the connection here was completely severed, but the preponderance thereof indicates that excess moisture was the cause of the failure. I cannot say that the trial judge ignored the weight of the evidence in attributing the resulting damage to the prior proximate negligence of defendant. It is peculiarly significant that wherever plaintiff’s cables were damaged, the lateral mains of the gas company were located at the same point. While *492 defendant’s witness denied that in the process of tunneling they had struck any of plaintiff’s conduits, they admitted that chunks of concrete had been removed by them. There was also abundant testimony which indicated that some of defendant’s workers did not even know that the telegraph cables were located in the street, although this information was readily available, while those who did know that plaintiff’s cables were close to the gas mains still failed to exercise due care in ascertaining the exact location before proceeding with digging and repairs. All of these .facts are carefully and effectively reviewed in the 37-page opinion filed by the trial judge. I am not persuaded that his determination either as to liability or as to the measure of damages should be upset. Affirmed, with costs to plaintiff. Wiest, Bushnell, North, and McAllister, JJ., concurred with Butzel, C. J.