Unglaub v. Farmers' Mutual Telephone Co.

■SMITH, J. Plaintiff, who is appellant, was assisting one Lafay in driving cattle to market along a public highway running south from Lafay’s farm. At the same time Lafay was starting to market a number of wagon loads of hogs. All seem to have started about the same time, near 4 o’clock on the' morning of May 3d. The defendant, a corporation, had constructed a telephone line on the west side of the highway; the poles standing against the' fence, running south from Lafay’s place, to a point where the telephone line left the highway and proceeded in ■ a southwesterly direction. At the point where this turn was made, defendant company had placed a pole with a guy wire attached thereto about 13 feet above the ground, extending some 9 or 10 feet east into the highway, where it was securely anchored in the ground. When the cattle were • turned out of Lafay’s yards, they started south at a rapid gait, on the west side of the highway, past the loaded wagons. Plaintiff, on horseback, pursued the cattle along the west side of the road about as fast as his horse could run, until he reached the point where the guy wire extended into the highway. He testified that it was so dark he did not and could not see the telephone poles or the wire. His horse hit and passed under the guy wire, which hit him in the mouth, and he was thrown from his horse, receiving more or less serious injuries. At the point where the accident occurred, the traveled portion of [358] the highway was near the east fence, and was 12 or 14 feet wide; its west line 'being perhaps 12 or 15 feet from the point where the guy wire entered the ground. The entire highway was level and ungraded, and was covered with prairie grass, except the traveled portion. [1,2] Plaintiff alleges negligence on the part of defendant in improperly constructing its lines, and maintaining an obstruction in the public highway. The defendant company was lawfully occupying the public highway; the telephone poles were set against the fence along the west line of the highway, and in • themselves clearly did not constitute an unwarranted obstruction thereof. The right to so use a public .highway is created by section 563 of the Civil Code. Mitchell v. Dakota Tel. Co., 25 S. D. 409, 127 N. W. 582; Snee v. Clear Lake Tel. Co., 24 S. D. 361, 127 N. W. 729. But the right to bo use the highway does not relieve the company from liability for injuries to persons caused by negligent or improper construction or maintenance of its lines. Louisville Home Tel. Co. v. Gasper, 123 Ky. 128, 93 S. &. W. 1057, 9 L. R. A. (N. S.) 548; Wilson v. G. S. Tel. Co., 41 La. 1041, 6 South. 781 ; Friesenhan v. Mich. Tel. Co., 134 Mich. 292, 96 N. W. 501; Sheldon v. W. U. Tel. Co., 51 Hun, 591, 4 N. Y. Supp. 526; Id., 121 N. Y. 697, 24 N. E. 1099; So. Texas Tel. Co. v. Tabb, 52 Tex. Civ. App. 213, 114 S. W. 448; Davidson v. Utah Independent Tel. Co., 34 Utah, 249, 97 Pac. 124; 37 Cyc. 1639 (D). [3] Defendant had no right to construct its lines in such manner as to place an unnecessary and dangerous obstruction in the highway. The undisputed testimony of one of plaintiff’s witnesses, who had much experience in such construction, was to the effect that the proper mode of placing such a guy wire was to connect it overhead with another pole on the opposite side of the highway, instead of extending it into and anchoring it within the highway. Under this evidence, the jury might have found that the guy wire which caused plaintiff’s injuries was a dangerous and unnecessary obstruction. [4] Respondent, however, most earnestly contends that appellant was guilty of contributory negligence in 'leaving the traveled, and proceeding at great speed on horseback along the untraveled, portion of the highway, when according to his own testimony it was so dark he could not see obstructions in the highway. Such [359] an act is not, in itself, conclusive evidence of' contributory negligence. Plaintiff was in. lawful use of the highway, in pursuit of his legitimate business, and in such manner as in his own judgment the exigencies of the occasion demanded. Whether his act was proper or necessary, under the circumstances, or 'was unnecessary, reckless, and negligent, was certainly a question for the jury. Respondent relies largely upon the case of Howard v. Flathead Tel. Co., 49 Mont. 197, 141 Pac. 153. That case holds that the act of a telephone company in-maintaining a guy wire upon that portion of a public highway not intended for travel is not negligence per se. In that case a narrow portion of the entire width of the highway had' been graded and prepared for travel; the remaining width being unfit for travel. The guy wire was outside of, but near, the graded part. The court says: “In the present instance the utmost that can be said of appellant's act in attaching its guy wire so near the traveled roadway is that it was a question for the jury whether it constituted negligence.” [5] In- the present case, the entire width of the highway, although ungraded, was level prairie land, fit for and subject to public travel, and the fact that the track most traveled was nearer the eastern boundary of the highway is not controlling. The questions of negligence of the defendant in constructing and maintaining the guy wire, and of the contributory negligence of plaintiff, should have been submitted to the jury. The order of the trial court is reversed, and the case remanded for a new trial. WHITIN'G, J., not sitting.