Harton v. Forest City Telephone Co.

CoNNOR, L, after stating the case: Before discussing the principal question involved in this appeal, it is important to note a difference, in an important respect, between the testimony certified to us in this and the former appeal (141 N. C., 455). In that appeal Alexander Mayes, a witness for plaintiff, after testifying in regard to the condition in which the pole was left by the overseer of the road, eight or ten days before the accident, says: “I told the lineman about the dangerous condition of the pole two or three days after we had worked the road. I told him it was the pole near Morrow’s stable. In a few days I noticed a stob had been driven by the pole, but that did not appear to make it any safer.” (Becord, p. 13). In this record the same witness says: “I-made report to the lineman of defendant company. I told him the pole was dangerous, and, if it rained and the ground got wet, that it would fall. I told him which one it .was.” The first testimony, if true, showed negligence, either in failing to repair the dangerous condition in which the road overseer left the pole, or in doing so negligently. If the lineman was told of its dangerous condition “two or three days” after the work on the road, it was at least six or seven days before the injury was sustained by plaintiff’s intestate. To fail to repair the condition and make it secure, after six or seven days’ notice, was manifest negligence. Ilis Honor, Judge Allen, so regarded it. From the testimony in this appeal it does not appear how long _ prior to the accident notice was given the lineman. It is clearly the duty of a telephone company to exercise reasonable care — and reasonable — 434 — care is, in this respect, a bigk degree of care — to select sound poles and to place them securely in tbe earth to prevent them falling, under ordinary and usual conditions, having due regard to the effect of rain and frost in loosening the earth, and prevailing winds blowing them down. The duty of reasonably careful construction is followed by like care in maintenance and inspection. Joyce Elec. Law, 605. The duty of inspection, in regard to its frequency, cannot be made definite, but regard must be had to the character of the soil, the condition of the weather, the season of the year and such other conditions as may affect the security of the poles and the safety of the traveling public. It is conceded that the defendant had discharged its duty in regard to construction of its line. Plaintiff’s witnesses say that, before the road overseer plowed near to it, the pole was secure — “all right.” We cannot say that a failure to inspect for eight or ten days, in the absence of any notice of trouble, was negligence. In the absence, therefore, of evidence of the time the lineman was notified of the dangerous condition of the pole, we think there was no evidence of negligence. The mere fact that the pole fell on Sunday, following a heavy rain the night previous, would not constitute evidence of a failure to repair within a reasonable time after notice, there being no evidence when notice was given. In vieAV of the fact that this case has been twice tried and a new trial upon this' point would prolong an expensive litigation, and in view of the further fact that the cause was' tried below and argued in this Court upon its merits, we deem it our duty to express the opinion to which we have arrived. When the case was here upon a former appeal, a majority of the Court thought that plaintiff should have gone to the jury, under Judge Allen’s instructions. The case, as now presented, enables us to pass upon the right of plaintiff to recover upon his own and such portions of defendant’s evidence as are not contradicted and which the jury may find to be true. — 435 — Defendant requested bis Honor to instruct the jury that, if they found the entire evidence to be true, plaintiff was not entitled to recover. This request assumes the truth of plaintiff’s evidence, and that, taking the defendant’s evidence to be trrie, it entitles the defendant to a Verdict. In this respect it differs from a motion for judgment of nonsuit. Before stating the case thus presented, we will eliminate the question whether plaintiff’s buggy wheel struck the prop placed by Carpenter to support the pole and thereby caused it to fall. More than one conclusion may be drawn from the testimony upon this point. ILence we must, in discussing the request for instructions, assume that the wheel did not strike the prop. We do not think that there is any evidence of negligence on the part of plaintiff. 1 We also assume, for this purpose, that defendant’s lineman was guilty of negligence in' failing to repair the condition of the pole, and that it fell by reason of such negligence, thus eliminating the heavy rainfall on Saturday night. Thus considered, the case comes to this: The pole, having fallen by reason of defendant’s negligence, was lying on the ground, across the road, on Sunday. Carpenter and several others came along and put the pole back in the hole from which it had fallen by reason of the support being removed by the overseer of the road, and the rain. He and those with him, for the purpose of making it secure, went to a wood pile near by and got a pine stick or pole, of the size and length described by them, and propped the pole in the manner described. They propped it up to get it out of the way. They could have held it up and driven under it, as they did another pole not far away. Carpenter* had no connection with and did not act in behalf of defendant. In less than an hour after Carpenter put the pole up, the plaintiff and his daughter, riding in a buggy and driving a mule, came along the road, and, just as they passed, without any suggestion of the immediate cause, other than inherent weakness in the support — 436 — wbicb it bad, tbe pole fell, tbe mule ran and, in some way, immaterial in this connection, but difficult to understand, the daughter received a severe concussion of tbe brain, without being bit by tbe pole, became unconscious and, in six weeks, died. Tbe question is thus presented, whether tbe act of Carpenter or tbe original negligence of defendant, in legal contemplation, was tbe proximate cause of tbe injury sustained by plaintiff’s intestate. We think it manifest that Carpenter negligently — that is, insecurely — placed tbe pole in tbe bole from wbicb it bad recently fallen. The dangerous condition in wbicb it was left by tbe overseer was the result of plowing near to it, removing or loosening tbe earth by wbicb it was supported. This, followed by tbe heavy rain, caused tbe pole to fall. This was manifest to Carpenter. All of the evidence is to this effect. Carpenter and those aiding'him recognized it by going to a wood pile and getting tbe pine stick with wbicb to prop it. That it fell within a short time' — less than an hour — shows that it was left by Carpenter in an insecure and dangerous condition. His motive — purpose—was doubtless to restore tbe pole and serve tbe defendant and its patrons, but tbe act was unauthorized. He could not impose upon defendant any new or different duty or liability from that wbicb it assumed by its original negligence. If tbe pole had struck plaintiff’s intestate when it fell tbe first time, or if, after being down across tbe road, she bad, without contributory negligence, driven against it and been injured, tbe defendant would have been liable. It was liable for all such damages as resulted or flowed in ordinary natural sequence from tbe negligent omission to repair tbe dangerous condition of tbe pole after a reasonable opportunity to do sotbe reason being, as said by Pollock, probably tbe most accurate writer on tbe subject, “that a person is expected to anticipate and guard against all reasonable consequences of bis negligence, but that be is not expected-to anticipate and guard against — 437 — that wbicb no reasonable man would expect to occur.” Torts, 40, citing Greenland v. Chaplin, 5 Ex., 248; Ramsbottom v. Railroad, 138 N. C., 38. Discussing tbis question, Mr. Justice Walker, in Drum v. Miller, 135 N. C., 204, quotes witb approval tbe language of Judge Oooley: “When tbe act or omission complained of is not in itself a distinct wrong, and can only become a wrong to any particular individual through consequences resulting therefrom, tbis consequence must not only be shown, but it must be so connected, by averment and evidence, witb tbe act, or omission, as to appear to have resulted therefrom, according to tbe ordinary course of events; as a proximate result of a sufficient cause.” Cooley on Torts, p. 74. Tbis principle would have been illustrated and applied if plaintiffs intestate bad been injured by tbe first falling of tbe pole or by driving against it while down across tbe road. Carpenter’s act introduces a new element in tbe case and renders it necessary for us to seek another principle by wbicb to determine defendant’s liability. It is manifest that, but for Carpenter’s act, tbe pole could never have fallen upon plaintiff’s intestate. So far as tbe dangerous condition of tbe pole, wbicb imposed upon defendant tbe duty of securing it, was concerned, when it fell its power to injure by falling was exhausted. No one having been injured in tbe falling, tbe case was damnum absque injuria. Tbe duty thus imposed upon tbe defendant was to remove tbe obstruction from tbe highway, and a failure to do tbis promptly, under tbe circumstances, rendered it liable for injuries sustained by any person traveling tbe highway. The pole was down across tbe highway by reason of defendant’s negligence, because, for tbe purpose of tbis discussion, we eliminate tbe heavy rain as a causal element in producing tbe condition. Assuming that defendant knew tbe pole was in a dangerous condition and liable to fall, either witb or without tbe heavy rain, it was fixed witb notice that it bad fallen — that is, that tbe probable result of its negligence bad occurred. In tbis condition of tbe case — 438 — we find a satisfactory statement of the law in Wharton on Neg., 138. Tie says: “Suppose that, if it had not been for the intervention of a responsible third party, the defendant’s negligence would have produced no damage to the plaintiff, is the defendant liable to plaintiff ? This question must be answered in the negative, for the general reason that' causal connection between the negligence and damage is broken by the interposition o#f defendant’s responsible human action. I am negligent on a particular subject-matter. Another person,, moving independently, comes in and, either negligently or maliciously, so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable.” The rule, as announced by Justice Strong, in Railroad v. Kellog, 94 U. S., 469 (p. 415), is usually regarded as sound in principle and workable in practice. He says: “The question always is, Was there an unbroken connection between the wrongful act and the injury — a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable conseqrrence of the negligence, or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.” In many of the cases found in the reports, in which it is claimed that intervening agencies have broken the causal connection between the wrong and the injury, it will be noted that the intervening agencies are either natural or conventional conditions, as when a house is negligently burned, whereby the — 439 — fire is communicated to other bouses more or less remote from the original, and winds or other natural causes have changed or controlled the course of the flames. Here the intervening agency is free, intelligent and independent, in the sense of a self-controlled person who interposes and changes the conditions which he finds existing when he enters upon the scene. The liability, if any exist, for his conduct is vicarious. Adopting either view of causation as the basis of liability — that of “natural and probable consequences,” or “what ought reasonably to have been anticipated and guarded against” — we think the same conclusion follows in this case. Dr. Wharton says: “Eeserving for another point the consideration of consequences resulting from the indefinite extension of vicarious liability, we may now ask whether, on elementary principles, the action of an independent, free agent, taking hold, unashed, of an impulse started by us and giving it a new course, productive of injury to others, does not make him the juridical starting point of the force so applied by him, so far as concerns the person injured. For the spontaneous action of an independent will is neither the subject of regular, natural sequence, nor of accurate precalculation by us. In other words, so far as concerns my fellow-beings., their acts cannot be said to have been caused by me, unless they are imbeciles or act under compulsion or under circumstances produced by me which gave them no opportunity for volition.” This language excludes nonliability for the acts of one under compulsion by reason of conditions produced by the original wrongdoer, as, in the Squib case, the throwing of the squib by the intervening persons was for their protection from a danger to which the defendant gave the first impulse. They were not “free agents.” Scott v. Shepherd, 2 Black, 892; 1 Smith L. C., 549. Of course, if Carpenter had been defendant’s servant, acting within the scope of his employment, the liability would have attached, upon the doctrine of cjui facit per alium, etc. — 440 — When tbe cause was before us on tbe other appeal, tbe majority of tbe Court conceded that Carpenter’s act “intervened and was tbe efficient cause of tbe injury” (141 N. C., 462), but tbe doubt was expressed whether it was a “new and independent cause.” Citing tbe language of Barrows on Negligence, it is said: “If, however, tbe cause — tbe intervening cause — be of such a nature that it would be unreasonable to expect a prudent man to anticipate its happening, be will not be responsible for damage resulting solely from tbe intervention.” Conceding this to be true, we have in tbe evidence a striking illustration of tbe dividing line between liability and nonliability. Defendant knew that tbe pole was in a dangerous condition — that tbe probability of its falling was increased by rain. That it might rain was reasonably probable. Therefore, although tbe pole may not have fallen if it bad not rained — and in a certain sense tbe “heavy rain” caused the pole to fall — yet, because it was an intervening cause which would naturally and ordinarily have occurred, and one which ordinary foresight ought to have “anticipated and guarded against,” tbe defendant, by reason of its original negligence, is not permitted to escape liability upon tbe suggestion of broken causal connection between tbe “wrong and tbe injury.” But can it be said that, in addition to this, it could have reasonably anticipated that Carpenter and bis associates- — ■ a free, intelligent agent — coming along and seeing two poles down across tbe road, would lift up one and pass under it, and would undertake to put tbe other back in tbe bole from which it bad just fallen, and, further, would go to a wood pile near by and get a pine stick with which to prop tbe pole? Can it be that all of this on tbe part of Carpenter was a natural, orderly, usual sequence from tbe original negligence, or that his action was a subject of ordinary pre-calculation or foreknowledge ? “Can we regard tbe independent action of intelligent strangers as something that is in conformity with ordinary natural law, or as something that can — 441 — be foreseen or preascertained ?” The fact that Carpenter disposed of the two poles in the same situation in an entirely different manner — lifting one up and passing under, and putting the other back in the hole — is a practical demonstration of the difficulty of following the argument of prevision to the length claimed by plaintiff. Assuming that defendant knew that the pole had -fallen, is it reasonably probable that it would or could foresee that some one would come and negligently put it back in the hole, in' plain view of its condition ? ' It is an entirely reasonable conclusion that the first traveler along the road would either push, pull or lift it out of his way, and if in doing so he left it in_a dangerous condition, whereby plaintiff was injured, the case would come within the principle of Clark v. Chambers, 3 Q. B. D., 327; 47 L. J. Q. B., 427; 19 Eng. Rul. Cas., 28, relied upon by plaintiff. In that case defendant had obstructed the highway with a hurdle and two wooden barriers armed with spikes. Some one came along and removed one of the chevaux-de-frise hurdles from the place where it stood, and placed it across the footpath. Plaintiff, passing there in the dark, ran against it and was injured. The Court held that defendant was liable. Pollock says that the decision, or, at least, the ground upon which it is put, is not in harmony with other cases. He says: “However, their conclusion may be supported, and may have been to some extent determined by the special rule imposing the duty of what is called 'consummate caution’ on persons dealing with dangerous instruments.” Torts, 49. In Sharp v. Powell, 7 L. R. (1812), 253, Bovill, C. J., says: “No doubt, one who commits a wrongful act is responsible for the ordinary consequences which are liable to result therefrom; but, generally speaking, he is not liable for damage which is not the natural or ordinary consequence of such an act, unless it be shown .that hé knows, or has reasonable means of knowing, that consequences not usually resulting from the act are, by reason of some existing cause, likely to — 442 — intervene so as to occasion damage to a third person.” Pollock says: “Whether Chambers v. Clark can stand with it or not, both principle and the current of authority concur to maintain the law as declared in Sharp v. Powell.” We have examined a number of decided cases in which the doctrine involved here is discussed. It is uniformly conceded that, while the principle is clear, the application is difficult, and variant combinations of fact render, decided cases of but little value as authorities. When the facts are in controversy, or more than one conclusion of fact may be drawn, the question is submitted to the jury. When the facts are admitted, or found by the jury, and the conclusion is clear and certain, it is a question for the court. After more than usual reflection and investigation, with the aid of exhaustive argument by able counsel, we are of the opinion that the defendant was entitled tó have the court instruct the jury that, if they believed the evidence, they should answer the first issue “No.” We have not discussed the seyeral instructions given by his Honor, because our opinion renders it unnecessary to do so. It is but just, however, to say that his Honor followed the rule laid down in the opinion of the Court. There was some difference in the testimony, to which sufficient weight was not given. Eor the error pointed out, there must be a . New Trial.