Hovey v. Michigan Telephone Co.

Hooker, J. The defendant’s workmen, engaged in constructing a telephone line, had strung and fastened its wire along Main street, in the village of Centerville, to and upon a pole standing at the corner of Main and Clark streets. The wire was then carried diagonally across the intersection of the two streets to the opposite corner, and over a crossbar upon a pole there situate, being allowed to sag near the ground across the intersection of the streets, thereby temporarily obstructing travel. The plaintiff, while driving his horse before a cutter, ran against the wire, and claims that the horse was injured. He recovered a judgment of $125, and the defendant has appealed. The plaintiff testified that he was driving at a rate of about 12 miles an hour, and did not see the wire, which hung about 2 feet from the ground, until just before it struck his horse’s knees. Counsel allege that the court erred in refusing to direct a verdict for the defendant, asserting that the record conclusively shows that the plaintiff knew that the defendant was stringing wire upon its poles along Main and Clark streets, and that the sun was at his back, shining brightly upon the wire, which was copper. It is contended that he was bound to know that there was liable to be a temporary obstruction, and that he was negligent in not having his horse under control, and in not seeing the wire in time to avoid it. We agree with the learned circuit judge that it was for the jury to say whether he had reason to expect and should have seen the obstruction; for we think it is not conclusively shown that he had such knowledge or notice as should lead an ordinarily careful man to look for an obstruction, or that it was negligence not to detect the wire. It is contended that he was shown to have been driving in violation of an ordinance imposing a penalty on dangerous or unusual driving. If it be conceded that he was [609] driving in violation of the ordinance, that fact alone is not conclusive against him. Before contributory negligence is established as a defense, there must be proof, not only of negligence, but that it contributed to the injury. These we consider questions of fact in this case, and it was proper to leave them to the jury. The defendant was not entitled to have given either the fourth or sixth request to charge. We cannot say, as a legal proposition, that defendant had a right to hang a wire across the street for such reasonable time as might be necessary for its purposes, without taking measures to protect travelers against accident; It would depend upon the circumstances, and therefore it was for the jury to determine the question. Again, if, as contended, the judge might have told the jury that the proofs conclusively showed that plaintiff was driving at an unlawful rate of speed, that of itself did not entitle defendant to a verdict. .There was the further question of whether it contributed to the injury. It is said that the judge should not have left the jury to determine whether the speed was unusual, and that he should not have omitted to say to them that the ordinance prohibited dangerous as well as unusual driving, and that he should not have left them to determine whether 12 miles an hour was prohibited by the ordinance or not. There was considerable testimony tending to show that others drove at a 12-mile pace through these streets, and our attention is not called to any proof that a 12-mile pace was dangerous. It seems to us that they were proper questions for the jury. The omission to instruct in relation to the word “dangerous” cannot be allowed to reverse the case. No proper request was directed to this question, and counsel did not call the court’s attention to the omission, while one or more of the requests omit the word “dangerous,” while including “unusual.” The judgment is affirmed. The other Justices concurred.