Pacific Telephone & Telegraph Co. v. Parmenter

MORROW, Circuit Judge (after stating the facts as above). It was the duty of the defendant to exercise due care in maintaining its poles, wires, and appurtenances in a reasonably safe condition, having regard to the fact that the poles were placed along the country road where the public was accustomed to travel. Jones on Telegraph and Telephone Companies, § 190. There, was evidence that some of the poles of the size of the one in question, in the ground in which it was placed, would rot off in 5 or 6 years. The pole that fell had been in the ground 15 years. It was ascertained after the accident that it was rotten and liable to fall when subjected to a strain. The pole once had a guy wire to hold it in place, but this wire had been cut and had not been replaced. There was some evidence tending to show that the person who cut the tree which fell against the wire and pulled the pole down was guilty of negligence; but this fact, if established, did not relieve the defendant from liability. The rule is: “If the concurrent or successive negligence of two persons combined together results in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury.” Thompson on the Law of Negligence, § 75. In Johnson v. Northwestern Telephone Exch. Co., 48 Minn. 433, 51 N: W. 225, the action was for an injury caused by the falling in a street in Minneapolis of one of the poles of the defendant on which were suspended its line wires, which fall was, as alleged, due to the rotten and unsound condition of the pole (permitted to be so by the defendant’s negligence), rendering it of insufficient strength to bear the weight of the wires suspended upon it. For the purpose of sustaining the pole and preventing it from falling, the defendant had extended a guy wire from the top of the pole to a building to which the other end of the wire was attached with the license of the owner of the building. The owner of the building revoked the license and required the removal of the wires from the building. The defendant failed to remove the wires, and thereupon the owner of the building cut them, and the pole, deprived of the stay afforded by the guy wires, broke off near the ground and fell into the street, injuring the plaintiff. At the close of the evidence the trial court directed a verdict for the defendant upon the apparent assumption that between the negligence of the defendant and the injury of the plaintiff there intervened an independent, adequate cause of the injury, to wit, the act of a third person, which it was said was what is termed in law the proximate cause of the injury. The Supreme Court held that it was a case of concurrent negligence, in which case each party guilty of negligence was liable for the result, and that the negligence of each as the proximate cause, for the injury would not have occurred but for that negligence. The facts of that case are almost identical with the facts of the present case, and the law as there stated is applicable here. The evi [144] dence tended to show that the pole that fell was at that'time in a rotten and unsafe condition and without the support of a guy wire. The negligence of the defendant in maintaining the pole in that condition was-therefore concurrent with the negligence of the person who felled the tree upon the wire. The general principle that, where an injury is. the result of the concurring negligence of two or more persons, all are liable jointly or severally for the whole damage, is supported by abundant authority. Shearman & Redfield on Negligence, § 31; Bishop on Noncontract Raw, § 573; Marine Ins. Co. v. St. Louis, I. M. & S. R. Co. (C. C.) 41 Fed. 643; C., R. I. & P. Ry. Co. v. Sutton, 63 Fed. 394, 11 C. C. A. 251; Gulf, C. & S. F. R. Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755; Carpenter v. Central Park, N. & E. R. R. Co., 11 Abb. Prac. (N. Y., N. S.) 416; Webster v. Hudson River R. Co., 38 N. Y. 260; Quill v. New York Cent. & H. R. R. Co. (Com. Pl.) 11 N. Y. Supp. 80; Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267; Louisville, N. A. & C. R. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968, 6 L. R. A. 193; Lake v. Milliken, 62 Me. 240, 16 Am. Rep. 456; Johnson v. Chicago, M. & St. P. Ry. Co., 31 Minn. 57, 16 N. W. 488; Campbell v. City of Stillwater, 32 Minn. 308, 20 N. W. 320, 50 Am. Rep. 567; Flaherty v. Minneapolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160, 1 L. R. A. 680, 12 Am. St. Rep. 654; Eaton v. Boston & L. R. Co., 11 Allen (Mass.) 505, 87 Am. Dec. 730; Waller v. M., K. & T. Ry. Co., 59 Mo. App. 410, 1 Mo. App. Rep’r, 56; Hooksett v. Amoskeag Mfg. Co., 44 N. H. 105; Barrett v. Railway Co., 45 N. Y. 628; Booth v. Railroad Co., 73 N. Y. 38, 29 Am. Rep. 97. Whether the defendant was guilty of negligence in failing to maintain its poles in a safe condition under all the circumstances was a question of fact for the jury. The question of negligence must be submitted to the jury as one of fact, not only where there is room for differences of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, but also where there is room for such difference as to the inferences which might be drawn from conceded facts. Shearman & Redfield on Negligence, § 64. It was also a question of fact for the jury to determine whether such negligence, if established, was the proximate cause of the injury. As stated by the -Supreme Court of the United States in Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 256: “The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a .chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib-thrown in the market place. Scott v. Shepherd, 2 W. Bl. 892. The question al. ways 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 not amount [145] ing to wanton wrong, is the proximate canse of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. * * * •‘In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury io look at this succession of events or fads, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.” The refusals of the court to give certain instructions requested by the defendant are assigned as error. It will not be necessary to review these requested instructions. They related to the degree of care required of the defendant, and the element of negligence entering into its liability in maintaining its line of poles. They instructed the jury that the defendant would not be negligent in assuming and acting on the assumption that no one would fell a tree upon its telephone line so as to break the line or pole; that the verdict should be for the defendant if the jury believed from the evidence that the pole which fell, although old and rotten, was so placed that it would not have fallen into the road and upon the plaintiff but for the tree falling upon the wires of the line. There were also requested instructions relating to the question of proximate and remote cause, and independent and intervening and controlling causes. It is manifest that some of these instructions were not proper and should not have been given. On the •other hand, it appears that the court gave such instructions as were proper in view of -the evidence in the case. Among other instructions, the court gave the following: “It is a fact that the cutting down of the tree, the contact of the tree with the wires, precipitated the falling of (he pole, and that was therefore a proximate cause of the injury to the plaintiff; it was the efficient cause. But where an injury is suffered and a combination of circumstances has brought about that injury, that occurrence, so that here is more than one efficient cause, and if one of those efficient causes was a wrongful act, then the injured person has a right to claim compensation from that wrongdoer, even though his wrongful act, or his negligence in combination with other acts without which the injury would not have happened, produced the result. “It will be for the jury to consider in this case whether the falling of the tree would not have caused the pole to fall and injure the plaintiff if the pole had been a sound timber, and if there had been no negligence on the part of the defendant in the case with respect to suffering that pole in a defective condition to support its wires there by the highway. “If the pole had been sound and safe, as it should have been, and the defendant guilty of no negligence in the matter, and still it would have fallen by reason of the falling of the tree upon the wires, there is no liability on the part of the defendant. If, however, you find that there was negligence on the part of the defendant with respect to that pole, and that the injury would not have happened by reason of the cutting down of the tree — if the defendant had been free from the negligence charged in this complaint — then you will be justified in finding that the negligence of the defendant was a concurring cause which would render the defendant liable for consequential injuries to the plaintiff. “The jury should take into account all that has been proved by the evidence with respect to the size and weight of the pole and its condition of soundness or unsoundness, the support which it bad by being connected in a line with the wires, by the wires, any defect which the evidence shows by reason of flie absence of a guy wire, the length of time that had elapsed after the pole [146] became in that condition, so as to judge of whether there was carelessness or negligence on the part of the defendant; and you are to judge from a consideration of the facts proven whether there was negligence; whether there was that degree of disregard of the conditions of this property which constitutes negligence and the omission of duty on the part of the defendant under all the circumstances. If there is no negligence, there is no liability, and the plaintiff cannot recover. “If there was negligence, it is still a question of whether that negligence was an efficient cause of the injury; if so, the defendant is liable, notwithstanding that there was another cause.” We think these instructions correctly defined the law applicable to the case. We have carefully considered the exceptions to the testimony admitted by the court over defendant’s objections, and find no error to the prejudice of the defendant. Counsel for plaintiff in his argument to the jury, referring to the tree which fell upon the wires and which appears to have been cut down by one Sewall, said: “If Mr. Sewall cut that tree down, you are to presume that he had a perfect right to do so. The law will never presume that a man is committing a wrong.” To this statement counsel for the defendant excepted, and requested the court to instruct the jury to disregard it. This the court did in its instruction, when it said: “It is not important in this case whether Mr. Sewall had a right to cut the tree down; as a matter of- law, he had no right to cut the tree down in a way to cause injury to this telephone line.” Whatever error there was in counsel’s statement was manifestly cured by this instruction. Finding no error in the record prejudicial to the defendant, the judgment of the court below is affirmed.