Reed v. Edison Electric Illuminating Co.

Pierce, J. Disregarding all evidence, including inferences of fact, unfavorable to the contentions of the plaintiffs as set out in their several declarations, under the rule recognized and followed [165] in Metayer v. Grant, 222 Mass. 254, and cases cited therein, the remaining testimony warranted the jury in finding that the plaintiffs while travelling in an automobile on the State highway, known as Central Avenue, in the town of Weston, suffered damage by reason of the collision of the automobile with an electric light pole of the defendant, lawfully standing within the limits of the highway. Upon the evidence a jury might find the surrounding conditions at the scene of the accident to have been as follows: The State highway runs westerly from the town of Weston. It includes within the limits of its location the stone walls on the north and south sides. Between the walls the surface of the way was nearly level .and was usable for travellers with teams or automobiles with the exception of the space covered by a sidewalk on the north side of the location and that occupied by trees and an electric light pole on the south side, the trees and pole standing respectively twelve or fifteen inches and four and one half feet from the face of the north side of the stone wall. The highway as located was three rods wide; on the north side the sidewalk was somewhat above the surface level of the way; then there was a space three and one half feet wide of rough macadam; then one of eighteen feet of smooth macadam; then one of three and one half feet of rough macadam; then a grass plot eight to ten feet wide extending to the south wall. On the road bed and sides of the way there were snow and slush in spots protected by the trees, but the tracks in the centre of the way were free and wheels ran upon the macadam. The tread of the automobile was fifty-six inches. The space of smooth and rough macadam outside the wheel tracks was ten feet and two inches on each side. A pole that had been used as an electric light pole was lying on the ground between the southerly wheel track and an electric light pole. It had been removed by the defendant to give place to the standing electric light pole ten days before the collision. It was twenty-four feet in length and extended from within a few feet of the upright pole to a point ten feet southerly of the south wheel track, which point was two inches to the north of the south line of the rough macadam. At a point east of and distant from the standing electric, light pole sixty to seventy feet, the car skidded to the left of the travelled [166] macadam way; the driver turned his front wheels to the left “to catch the skid;” he caught it, then he turned back to the centre of the way; he pulled on his steering wheel — could not get back — he had run up against the pole on the ground which held the left wheel, and the car, so guided, ran straight to and against the upright electric pole. There was also testimony to justify a finding that the pressure of the wheels of the car against the butt of the prostrate pole caused the tip of that pole to swing two feet to the north, and that the tip, before the position of the pole was changed by contact with the automobile wheel, was two feet and two inches on the travelled macadam way. Upon the evidence the jury also might find that the position of the pole had not changed during the ten days it was on the ground, that its presence was not necessary or helpful to the prosecution of any remaining work of the defendant, that it was an obstruction and menace to travel, and made the travelled way unsafe and dangerous. A license or permit to use the way for the purpose of erecting and removing poles by the side of the way does not authorize or excuse such use for an unreasonable time or for a purpose that interferes with, obstructs or endangers unnecessarily the rights of others. Sawyer v. Davis, 136 Mass. 239, 242, and cases cited. Dolan v. Charles J. Jacobs Co. 221 Mass. 256. The pole, in the position in which the jury could have found it to have been, was a public nuisance, unless the fact of its being there was justified by evidence which the record does not disclose. Bemis v. Temple, 162 Mass. 342. Horr v. New York, New Haven, & Hartford Railroad, 193 Mass. 100. Commonwealth v. Morrison, 197 Mass. 199. Stoliker v. Boston, 204 Mass. 522. Igo v. Cambridge, 208 Mass. 571. Dolan v. Charles J. Jacobs Co. supra. We are of opinion that the jury rightfully might find that the collision with the upright pole was a consequence of the contact of the left wheel of the automobile with the pole lying on the ground in the position which the jury might have found it to have been on the testimony of the witness for the plaintiff, and that the consequent damage was sufficient to found an action against the defendant. Leahy v. Standard Oil Co. of New York, 224 Mass. 352, 361, 362. Rapier v. London Tramways Co. [1893] 2 Ch. 588, 599. Salmond, Torts, 199. [167] We do not think it necessary to determine whether the pole was a nuisance in the highway if, at the time the automobile came in contact with it, it was lying in the grass parallel to and eighteen inches or two feet from the southerly wall, as might have been found to be the fact on the testimony of the witnesses of the defendant. Whether it was or was not “safe and proper” to operate the car under the conditions existing at the time, was a question of fact for the jury and not of expert opinion, and the answer of the witness Gallup should not have been received. We find no other reversible error in the admission or rejection of testimony. The case should have been submitted to the jury. Exceptions sustained.