Bevis v. Vanceburg Telephone Co.

Opinion by Judge Settle Reversing. As appellant, Fanny Bevis, in company with Miss Warring, was driving along the public highway in the buggy of the latter from Union Church to the village of Garrison, in Lewis county, the buggy was overturned by coming in collision with a telephone pole; the occupants thrown out, and appellant seriously injured.' She brought suit in the circuit court against appellees, the Yanceburg Telephone Company and B. A. Bonniville, to recover of them damages for the injuries thus sustained by her, upon the ground, as set forth in her petition, that the telephone pole, which caused her injuries and was owned by appellee telephone company, had -been negligently and without right erected by appellees in the public highway, and was by them wrongfully and negligently continued and maintained therein, in violation of the rights of the traveling public, and that as thus located and maintained the telephone pole greatly interfered with the use of the public road by persons traveling the same, endangered their safety, and by reason thereof was and is a common nuisance. The answer of appellees traversed the affirmative allegations of the petition, and in addition averred that the telephone pole was erected [183] and maintained in the public road by permission of the Lewis County Court, and under the authority conferred by sec. 4679a, Ky. Stats. 1903, and, further, that appellant’s injuries were caused solely by her own negligence, or that of her traveling companion, Miss Warring. Upon the trial of the case the lower court at the conclusion of appellant’s evidence peremptorily instructed the jury to find for appellees, which they accordingly did, following which, judgment was entered dismissing the action, and of this judgment and the refusal of the lower court to grant her a hew trial appellant now complains. It appears from the bill of evidence that appellant, who is a teacher, on the evening of receiving her injuries attended a teachers’ meeting at Union Church, and at its close was invited by Miss Warring to ride with her in her buggy to Garrison, which invitation she accepted. They left the church about 10 o’clock in the evening. The night was dark, and as they were driving along at a reasonable rate of speed the buggy struck the telephone pole, with the result already stated. The pole was set in the road or traveled way from 2 1-2 to 3 1-2 feet from the side or edge of the road; and as, according to the weight of the evidence, the road at that point was only 20 feet wide, the telephone pole left about 16 feet of the traveled way free for vehicles.’ On the opposite side of the road, and a little north of the pole, stood a large oak tree. Between the pole and fence on the west side of the road was a space of about 7 feet, including a low place or shallow ditch, which was frequently used by horsemen in traveling the highway. It is not altogether clear whether, at the time of the collision of the buggy with the telephone pole, the horse was trying to pass between the pole and the adjacent fence or not, [184] though such was probably the ease. It is conceded in argument that the peremptory instruction was given by the trial court upon the idea that the appellee telephone company had the right to erect and maintain its poles in the public highway by virtue of the provisions of sec. 4679a, Ky. Stats. 1903, which allows such highways, upon the payment of just compensation therefor, to be so used by telegraph companies: “Provided, that the posts, arms, insulators and other fixtures of such telegraph lines be erected and maintained in the usual manner of constructing, operating and ; maintaining telegraph lines on, or along and upon the right of way of railroads and on, across and along the highways and across and under navigable waters, and in such manner as not to interfere with the ordinary use, or the ordinary travel and traffic on such highways, railroads, or waters, or that of any other telegraph line already constructed.” * * * Sec. 4306, Ky. Stats. 1903, provides: “The fiscal court of each county shall have general charge and supervision of the public roads and bridges therein and shall prescribe necessary rules and regulations for repairing and keeping same in order, and for the proper management of all roads and bridges in said county, under and subject to the provisions of this act.” * * * In Cumberland Telephone & Telegraph Company v. Avritt, 120 Ky., 34, 85 S. W., 204, 27 Ky. Law Rep., 394, it was held by this court that the building of a telephone line upon a public highway imposes no additional servitude; but, while this is true, a telephone company may not so use a highway with its poles as to obstruct or make dangerous its use to the traveling public. The Lewis County Court had no jurisdiction or power to authorize the use of the [185] highway by appellee’s poles or wires, and it does not appear that appellee obtained of the fiscal court of Lewis county the right to occupy the public road in question with its poles, and the right given it by sec. 4679a, supra, to do so, is subject to the power conferred upon the fiscal court by sec. 4306 to impose the rules and regulations under which it shall so use the highway. The statute, therefore, contemplates that the consent of the fiscal court must be obtained. But, conceding, for the sake of the argument, that appellees are right in their contention that telephone companies, under sec. 4679a, are given the same rights that are conferred upon telegraph companies, and that it was unnecessary for appellee company to obtain the consent of the fiscal court to its use of the highway in question, it nevertheless had no right, in its use of the highway, to so erect its poles as to interfere with or render dangerous the use thereof by the public for purposes of travel, but could do so only “in such manner as not to interfere with the ordinary use or the ordinary travel and traffic on such highways. ” * * * As said in Wyant v. Central Telephone Co. (Mich.), 81 N. W., 928, 47 L. R. A., 498, 81 Am. St. Rep., 155: “We may take judicial notice that poles must he set near the side of the street or road, and that they are generally outside of the curb or ditch line, and therefore necessarily in line with the trees.” In Cohen’s Adm’rs v. Mayor of New York (N. Y.), 21 N. E., 700, 4 L. R. A., 406, 10 Am. St. Rep., 506, on the subject of obstructions in highways, it is said: “It is -no answer to the charge of nuisance that, even with the obstruction in the highway, there is still room for two or more wagons to pass, nor that the obstruction itself is not a fixture. If it is per [186] manently, or even habitually, in the highway, it is a nuisance.” * * * There is always reasonable ground for apprehending accidents from obstructions to a public highway, and any person who wrongfully places them there, or aids in so doing, must be responsible for such accidents as occur by reason of their presence. In the case at bar appellees admit putting the telephone poles in the highway. The proof shows it is out of line with their other poles, and is the only one that occupies the highway. Its presence in the road may not in the daytime imperil the safety of persons traveling the highway; but at night, and in the dark, there can be no question of danger therefrom to those upon the highway, and at all times it must be regarded as an obstruction to the highway. At any rate, whether it was an obstruction dangerous to those traveling the highway, and in consequence thereof a nuisance, was a question to go to the jury; and, under the testimony, it should have been allowed to do so. There was no proof of negligence on the part of appellant or the driver, Miss Warring; but, if there were proof of negligence on the part of the latter, it is not to be imputed to appellant. In our view of the law the peremptory instruction was improper. Wherefore the judgment is reversed, and cause remanded for a new trial and further proceedings consistent with the opinion.