Southwestern Telegraph & Telephone Co. v. Abeles

Hart, J., (after stating the facts). 1. It is earnestly insisted by counsel for appellant that the evidence does not support the verdict. In other words, it is contended that the evidence, when considered in the light most favorable to appellee, did not warrant the jury in returning a verdict in his favor. In determining this question, it becomes necessary to ascertain w'hat is the duty of telephone companies in putting in and maintaining telephones. In the case of Southern Telegraph & Telephone Co. v. Evans (Tex. Civ. Appeals), 116 S. W. 418, the court said: “The duty resting upon telephone companies to adopt precautions for preventing charges of atmospheric electricity from entering buildings over their telephone wires is thus stated by the Supreme Court of Vermont: ‘Having undertaken to place and maintain the instrument in the house and connect it with its telephone line for the use of the deceased, in so doing it was under the duty to exercise the care of a prudent man under like circumstances. If, while in the exercise of such care, it had reasonable grounds to apprehend that lightning would be conducted over its wires to and into the house, and there do injury to persons or property, and there were known devices for arresting or dividing such lightning, so as to prevent injury therefrom to the house or persons therein, then it was the defendant’s duty to exercise due care in selecting, placing and maintaining, in connection with its wires, such known and approved appliances as were reasonably necessary to guard against accidents that might fairly be expected when conducted to and into a house over its telephone wires.’ ” The following -authorities are cited to the same effect: Griffith v. New England Tel. & Tel. Co., 72 Vt. 441, 52 L. R. A. 919; Southern Bell Tel. & Tel. Co. v. McTyer, 137 Ala. 601, 97 Am. St. Rep. 62; 1 Joyce on Electric Law, § 445f. See also Rural Home Telephone Co. v. Arnold (Ky.), 119 S. W. 811; Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581. Appellee, when injured, was in the discharge of his duty to his employers, and was using the telephone in- the ordinary way. The evidence adduced in his behalf shows that he was not attempting to use it during a severe electrical storm. His own testimony tends to show that there was no -storm in progress in the vicinity of the office when he went to use the telephone. The expert evidence adduced in his behalf tends to show that a protective device or lightning arrester without a ground wire attachment would be of almost no protection against lightning. His expert witness on that point went into details, and gave his reasons for his opinion. His testimony is flatly contradicted by the experts on the part of appellant; but that only presents a conflict of evidence, upon which we are not called upon to pass. Counsel for appellant urges upon us that its telephones were constructed with the kind of lightning protectors generally in use in this State, and that protectors with ground wire attachments were nowhere in use in the State; but this testimony only tended to show that appellant had discharged its duty by using lightning arresters of the most practical kind- and in general use; and it was still a question of fact for the jury to say if this was true. We have a statute requiring railrpad companies to construct suitable and safe cattle 'guards in certain cases. In discussing the question of whether the evidence showed the company had discharged its duty, in the case of Choctaw & Memphis Railroad Co. v. Goset, 70 Ark. 427, the court said: “But the question is usually one of fact for the jury, and it would not be proper for the court to instruct them that the compairy has discharged its duty if the guard is similar to those used by other first-class railroads.” We are of the opinion that the facts and circumstances adduced in evidence, when considered in the light most favorable to appellee, warranted the jury in finding that the injury was received during an ordinary electrical disturbance, while appellee was using the telephone in the ordinary way, and that the failure on the part of appellant to attach a ground wire to its lightning arrester to the telephone in question was negligence, and that it was the proximate cause of the injury. 2. Counsel for appellant contends .that the first instruction given by the court at the request of appellee assumes that the wires or instruments caused or contributed to the presence of the lightning. The objection is not tenable. The instruction merely defined the duty of appellant in installing its telephone to equip it with such appliances as were reasonably necessary to guard against injuries from lightning. Besides, the objection now urged, being to the form of the instruction, should have been met in the trial court by specific objection, which was not done. This rule has become too firmly established in this State to need a citation of authority to support it. 3. Counsel for appellant also insists that the court erred in refusing his fourth instruction, by which he sought to have the court tell the jury that, if they found the appellee had been injured by an extraordinary stroke of lightning, appellant would not be liable. This was not error because the appellee did not claim any right of recovery unless the jury found that he was injured in an ordinary electrical disturbance; and the instructions given by the court at the request of both appellant and appellee were predicated on the jury so finding. 4. Appellant’s fifth instruction was completely covered by the eighth instruction given at the request of its counsel, and there was no error in refusing the fifth. 5. The eleventh instruction asked by counsel for appellant for the most part was covered by instructions given. A part of it was to the effect that appellant was under no legal duty to provide its wires entering into said building with insulating covering. No proof was offered to sustain this alleged ground of negligence, and appellee abandoned his right to recover under it. Hence the court did not err in refusing the instruction. Other objections are made to some of the instructions, but we will not discuss them in detail. It is sufficient to say that the only ground of negligence relied upon by appellee for a recovery was the failure of appellant to equip its lightning arresters with a ground wire attachment, and this question, together with the other facts necessary to make appellant liable, was fully and fairly submitted to the jury by the instructions given by the court. 6. Again, counsel for appellant insists that the court erred in not excluding certain portions of Dr. Green’s testimony, and in certain remarks made by the court when appellant’s counsel made objections to the testimony. • It is sufficient answer to this to say that no exceptions were saved either to the ruling of the court on the evidence or to the remarks made in doing so. Under the well established rules of this court, if any errors were committed, they have been‘waived. 7. Counsel for appellant next objects that the court permitted Drees to testify with reference to the general rules in vogue in the general business world, as to the installation of electric wiring in the city of Tittle 'Rock, with reference to lightning arresters or protective devices. An examination of the transcript shows that the witness did not answer the question to which objection was made. He was instructed by the court to make his answer without reference to the code of rules, and he did so. 8. Counsel for appellant next insists that the court erred in admitting certain portions of the testimony of P. C. Ewing, but, inasmuch as he saved no exceptions to the ruling of the court, the objection must be considered as abandoned. 9. Counsel for appellant earnestly insists that the court erred in admitting appellee to read in evidence a part of appellant’s printed specifications or rules with reference to ground wires. The objection to the introduction of the rule was that it was designed for protection against fire. Appellant’s foreman had testified for it that appellant had two methods of installing telephones. The new method by which the lightning arresters were provided with a ground wire attachment, and the old method, in which the ground wire was not used. We think the evidence was admissible, and the jury could consider it for what it was worth as tending to show that the installation of a telephone without a ground wire attached to its lightning arrester was dangerous, and that appellant recognized ft to be so. 10. Counsel for appellant urgently presses upon us that the damages awarded by the jury are excessive. The testimony of eminent specialists shows that appellee was severely shocked, and that he suffered greatly for several weeks after the injury was received. The hearing in his right ear is impaired, and the hearing in his left ear is wholly destroyed. Appellee is a young man. This affliction and handicap he must bear throughout life, and we can not say that under such circumstances the verdict is excessive. We find no error in the record, and the judgment will be affirmed.