Hayes v. New England Telephone & Telegraph Co.

*487 Branch, J. At about 9:30 in the evening of December 22, 1931, an automobile operated by the decedent upon the road between En-field and Canaan and in the town of Canaan, came into collision with a telephone pole maintained by the defendant, which stood about three feet from the edge of the tarred surface of the road. The car, of the type known as a coupé, was found, with the decedent unconscious therein, on the right-hand side of the road, with the left-hand door destroyed and the pole imbedded in its left side at a point opposite the driver’s seat. The road was icy and slippery at the time. The negligence of which the plaintiff complained was that the pole in question was set too close to the traveled part of the road. Although there was no evidence upon the point, it was conceded by the plaintiff at the trial that the defendant’s pole line “was located in accordance with governmental authority” which must be construed to mean under a valid license, and the defendant contends that since the pole was lawfully erected it cannot be charged with negligence upon the sole ground of improper location. The soundness of this position must be tested by an examination of the statutory provisions applicable thereto. The statute by authority of which, we must assume, the defendant’s pole line was erected reads as follows: “2. Locating. Such person or corporation shall petition the selectmen of the town through which the line will pass to locate the route thereof and grant a license therefor. The selectmen may grant a license for such time as they deem expedient, may from time to time change the terms and conditions thereof, and may revoke it whenever the public good requires. They shall fix and state therein the size and location of such poles and structures, the distances between them, the number of wires to be used, and their distance above or below the surface of the highway . .. .” “4. Interference with Travel. No poles, structures or wires shall be so placed as to interfere with the safe, free and convenient use of any highway for public travel, or of any private way leading therefrom to adjoining land or buildings, or with the use of such land or buildings, or so as to interfere with any other similar structure.” P. L., c. 97, ss. 2, 4. “These provisions were designed to regulate and control the use made of highways for such purposes, so that such use will not unduly interfere with the other public uses to which the highways are dedicated.” American Loan &c. Co. v. Company, 71 N. H. 192, 200. *488 In support of its argument that “the license is conclusive as to the [proper] location of the pole,” the defendant seeks to establish two propositions: first, that the license must have specified the exact location of the pole in question because section 2 of the statute above quoted required that it do so, and, second, that the judgment of the defendant’s agents as to the proper location of the pole was thus superseded by that of the selectmen of Canaan, for whose errors the defendant is not responsible. It is unnecessary to consider the soundness of the first contention, for even if the statute required the license to specify accurately the location of each pole erected in pursuance of it, the conclusion would not follow as a matter of law that the defendant was thereby absolved from liability for harm caused by the pole in question if it was in fact set in a spot where it constituted a danger to public travel. On the contrary, liability on the part of the owner for the improper location of poles would seem to follow as a necessary corollary from the provisions of P. L., c. 97, s. 4, above quoted. This section provides that “no poles ... shall be so placed as to interfere with the safe, free and convenient use of any highway for public travel ...” The violation of an express statutory provision, such as this, ordinarily carries with it civil liability to any persons injured by the creation of a danger which the statute was designed to prevent (See Flynn v. Gordon, ante, 198) and such was the construction placed upon this section in McCaffrey v. Company, 80 N. H. 45, 46. The court there said: “In accepting this location the defendants assumed the burden imposed by section 4 of the same chapter that ‘no poles, structures, or wires shall be so placed as to interfere with the safe, free and convenient use of any highway for public travel’. As this duty is imposed upon the defendants by statute, it is unnecessary to refer to authorities declaring the obligation of those lawfully maintaining in public ways wires for the transmission of electricity to exercise care for the safety of the traveling public.” We see no reason to doubt the correctness of this interpretation. The suggestion of the defendant that “Section 4 is simply a direction to the selectmen” involves a strained construction of the language of the act which we decline to adopt. Final confirmation of the views above set forth is found in sections 15 and 16 of the same act (P. L., c. 97) which provide as follows: “15. To Indemnify Town. The proprietors of every line of wire strung in a highway shall indemnify the town against all damages, costs and expenses to which it may be subjected by reason of any in *489 sufficiency or defect in the highway occasioned by the presence of the wires and their supports therein.” “ 16. To Party Injured. They shall also be responsible directly to any party receiving injury in his person or estate from the wires or their supports, or from the use thereof by the proprietors.” The meaning of section 16 seems extremely clear. The statement that the proprietors of every line of wires strung in a highway shall be responsible to every party receiving injury from the wires or their supports would ordinarily require no elucidation. Some confusion has arisen, however, because of the fact that sections 15 and 16 were originally a single section of the Public Statutes (P. S., c. 81, s. 16) in regard to which this court made the following observations: “The second sentence gives to the person injured a direct action against the defendant instead of requiring recovery of the town and action over. As recovery could not be had against the town without proof of the town’s default, it is not probable it was intended to make the defendants, who answered over, liable directly if without fault.” Lambert v. Company, 80 N. H. 126, 130. Basing their argument upon these statements, counsel for the defendant contend that the only party primarily liable for harm caused by the improper location of poles in a highway is the town; that the proprietors are liable only as indemnitors of the town; that direct proceedings are permitted against them only to avoid circuity of action; and that since the town could not be held liable under the facts of this case (P. L., c. 89, s. 1) the defendant is similarly immune from liability. The Lambert case does not sustain this argument. Nowhere in that decision is it stated that the defendant was liable only as indemnitor of the town. On the contrary, the court clearly recognized two distinct bases of liability, namely: (1) Liability of the town upon “proof of the town’s default,” in regard to which the defendant must answer over, and (2) direct liability of the defendant to the person injured upon proof of the defendant’s fault. Clearly section 16 imposes upon the proprietors of poles something more than an indemnitor’s liability for the default of the town, since they are made responsible not only for injury caused by “the wires or their supports,” but also for that caused by “the use thereof by the proprietors” for which the town would not be responsible at all. The provisions of the original act of 1881 from which the present law was derived (Laws of 1881, c. 54) shed light upon the meaning of the section here involved. Section 10 of that act read as follows: *490 “Nothing herein contained shall exempt any such proprietors from liability for any unlawful entry, trespass, or damage already made or committed, nor from any liability or damage that may occur from want of care or from negligence in erecting or maintaining such poles, structures, or wires.” Here was a plain provision that the proprietors should be hable for the results of their own negligence in erecting poles despite the fact that they were acting under a license from the selectmen. The revision of 1891 was apparently designed to enlarge rather than to restrict the liability here imposed. Section 10 of the act of 1881 was accordingly omitted in chapter 81 of the Public Statutes and a new section was inserted by the revising commission which has now become sections 15 and 16 of chapter 97 of Public Laws above quoted. This section enlarged the liability of proprietors (1) by requiring them to indemnify towns against any loss which they might sustain by reason of poles and wires in highways, and (2) by substituting for the negative language of the act of 1881 a positive obligation to respond for all injuries resulting from “the wires or their supports or from the use thereof by the proprietors.” We, therefore, conclude that the liability of the defendant for harm caused by the location of its poles is not only the indirect obligation of an indemnitor for the town, but the direct responsibility of one who negligently maintains a structure in a highway in such a manner as to endanger public travel thereon. The defendant’s license had the effect of removing its poles from the category of nuisances which they would otherwise occupy. P. L., c. 97, s. 11. Its obligation to use due care in their location and erection was not affected by it. “In the exercise of the easement assumed to have been granted to it, the defendant was bound to do all that a reasonable man would do to protect the rights of others. This is the common-law rule and the statute provides that the company shall ‘be responsible directly to any party receiving injury in his person or estate from the wires or their supports or from the use thereof by the proprietors’. P. S., c. 81, s. 16.” Peaslee, J., dissenting, in McCaffrey v. Company, 80 N. H. 45, 50, 51. Such being the state of the local law, the cases cited by the defendant from Massachusetts where a different rule prevails, of which Curran v. Railway, 249 Mass. 55 is an example, are not in point. The issue of the defendant’s negligence in setting its pole within three feet of the edge of the traveled portion of the road was properly submitted to the jury. It seems too plain for argument that an ob *491 ject beside a highway becomes more dangerous to travelers as its distance from the line of travel decreases. This truism has received frequent recognition in the decisions of this court where the position of objects near the line of travel has been stressed as indicating the need for protection. Willey v. Portsmouth, 35 N. H. 303, 314; Davis v. Hill, 41 N. H. 329, 335; Stack v. Portsmouth, 52 N. H. 221, 223; Knowlton v. Pittsfield, 62 N. H. 535, 536. Photographs of the pole in question which were exhibits in the case disclose a situation which would at once strike an impartial observer as dangerous. The testimony of the defendant’s agents that poles fifteen feet from the traveled portion of a road are struck by automobiles quite as frequently as those within three feet was, of course, inconclusive. Under these circumstances, in this jurisdiction, the question of the defendant’s care was for the jury, although it may be true that elsewhere similar questions have been decided favorably to defendants as a matter of law. See Gulfport &c. Co. v. Manuel, 123 Miss. 266; Bailey v. Company, 131 N. Y. S. 1000. The suggestion that the presence of the pole was merely a condition and not a proximate cause of the accident hardly merits notice. Upon this theory, no one could ever be held hable for an injury caused by an obstruction in a highway. The argument that the decedent was guilty of contributory negligence as a matter of law is equally without merit. There were no witnesses to the accident and the decedent died without recovering consciousness. The burden of proving his negligence rested upon the defendant (P. L., c. 328, s. 13) and in the absence of evidence of his conduct there would be no issue even for the jury to pass upon (Roberts v. Lisbon, 84 N. H. 266, 269), much less for the court to decide as a matter of law. The motions for a nonsuit and a directed verdict were properly denied. The court charged the jury as follows: “The plaintiff here is seeking to recover under a statute which provides that any person or corporation, except municipal corporations, through whose negligence or carelessness any obstruction is caused upon any highway, shall be liable to any person injured by reason thereof.” P. L., c. 89, s. 1. To this instruction the defendant excepted upon the ground that this statute “has no application to the facts of the case.” It is now argued that the section above referred to “contemplates the placing of an unlawful obstruction” and since the pole in question was lawfully erected, it could not be found to be an obstruction within *492 the meaning of the law. From what has been said above it is plain that this position is untenable. Demond, Woodworth, Sulloway & Rogers (Fred C. Demand by brief), for the motion. Murchie, Murchie & Blandin, opposed. Defendant’s other exceptions have not been argued but have been examined and appear to be without merit. Judgment on the verdict. Woodbury, J., did not sit: the others concurred.