Reidy v. New England Telephone & Telegraph Co.

Rugg, C.J. The plaintiffs seek to recover compensation for personal injuries and property damages received [48] while travelling on a highway. Undisputed evidence introduced by the plaintiffs was to the effect that at about one o’clock on the afternoon of Columbus Day, 1926, the automobile in which they were riding collided with wires attached to a pole of the defendant which was lying in and not quite half way across the road; that the wires were not perceived by the driver of the automobile until too late to avoid contact with them; that about ten o’clock in the forenoon, of the same day another automobile, being crowded off the road by an automobile going in the opposite direction, hit the telephone pole, broke it near the bottom, and it tipped about half way over and was about three feet from touching the road; that wires went from the top of this pole to other poles; and that the place of these occurrences was on the Enfield road about four miles from Ware. The repair man of the defendant, called as a witness by it, testified that he lived in Palmer about fourteen miles from the place in question. He was not at work on October 12, 1926, because it was a holiday. When he went to work on the next morning, he received notice that there was trouble on the Enfield trunk lines, that they were noisy, and he went to the pole. He described the condition of the wires. He testified that the pole carried four trunk lines and one local line; that from the local line wires ran across the road to a house where there was no telephone service at the time; that these wires were broken off at the pole and no trouble existed or was reported on that line; that none of the Ware-Enfield circuits was broken but two of them had become “side crossed” with the result that they were made noisy, and that the company would not know of any trouble with the wires in these circumstances unless an operator happened to use the lines, and that all calls between Ware and Enfield went over the lines on this pole; that the defendant had at Springfield a delicate piece of measuring machinery whereby, after trouble was reported, its general location might be determined; that on the holiday while he was away no one was in charge of repairs, and that, in case of reported trouble, the operators [49] would try to get in communication with the local wire chief who for this territory was in Palmer. There was testimony that the pole in question was located five feet, six inches from the edge of the travelled way. There was no evidence of any defect in the pole, or of any notice to the defendant of the fall of the pole or the time when any operator, servant or agent of the defendant discovered trouble on the line. There is no suggestion that the pole was not lawfully located. Succinctly stated, the question is whether the defendant can be found negligent for failing for a period of about three hours on a holiday on a somewhat remote country road to discover and remove or guard a pole caused to be broken and to fall partly on a highway by the negligent operation of an automobile by some traveller. There was in our opinion no evidence to warrant a finding of negligence on the part of the defendant. Falk v. Finkelman, 268 Mass. 524, 527. There was no evidence as to the amount of telephoning over the wires on this pole on a holiday. The neighborhood was remote. Enfield is a town with a very small number of inhabitants. There is no ground for inference that any operator of the defendant would naturally have learned of the fallen pole through noise on the wires or otherwise in the space of about three hours and have been able to report it in time for its removal in all the circumstances here disclosed. The cases at bar are distinguishable from cases like Thomas v. Western Union Telegraph Co. 100 Mass. 156; Bourget v. Cambridge, 159 Mass. 388, and Jordan v. Adams Gas Light Co. 231 Mass. 186, where the doctrine of res ipso loquitur is applicable, or where a defendant has control of electricity or other dangerous instrumentality. The plaintiffs rightly do not invoke special liability under G. L. (Ter. Ed.) c. 166, § 42. Vigeant v. Postal Telegraph Cable Co. 260 Mass. 335. The direction of verdicts for the defendant was right. It is doubtful whether the record shows the taking of any exceptions. But a “substitute bill of exceptions” was allowed by the trial judge. The bill as printed has some [50] of the aspects of a report in that it provides, expressly for the final disposition of the case in any event. Without intending that this be regarded as a precedent, we treat the cases as they have been treated by the parties, as pending on exceptions. Exceptions overruled.