Southwestern Telegraph & Telephone Co. v. Robinson, 50 F. 810

Bruce, District Judge, (after stating the facts.) The question and the only question for review here is whether the plaintiff stated a cause of action in his petition, and if the demurrer to the cause of action, as stated by the plaintiff in the court below, was properly overruled. In Railroad Co. v. Jones, 95 U. S. 439, it is said negligence is the failure to do what a reasonable and prudent person would ordinarily have done, under the circumstances of the situation, or doing what such a person, under the existing circumstances, would not have done.

It .would seem too plain to require argument that the allegations of the petition show negligence on the part of the telephone company. Under the facts and circumstances stated the wire was an obstruction upon the public highway. Travelers wore liable to collide with it, and inj urious consequences to them would follow as the natural and probable result of such contact.

Article 622 of the Revised Civil Statutes of Texas provides: “Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers, abutments, wires, and other fixtures along, upon, and across any of the public roads, streets, and waters of the state, in such manner as not to incommode the public in the use of such roads, streets, or waters.” The duty on the part of the telephone company was clear to prevent its wire from becoming an obstruction on the highway.

Under the circumstances shown the defendant in error might have been hurt by coming in contact with the wire of the telephone company, and injuries to the defendant in error might have resulted, independent of the fact that the wire at the time was loaded with a charge of electric fluid from the clouds and storm then prevailing.

So that it is difficult to see how this verdict could be disturbed even if the contention of the plaintiff in error is correct, that the electricity with which the wire was charged at the time was the proximate and immediate cause of injury to the defendant in error, for which the telephone company cannot be held responsible. Negligence is a mixed question of law and fact, and is a question for the jury, under proper instructions from the court.

It is not claimed here that the court misdirected the jury in its charge on the law of the case, and the verdict is: “We, the jury, find for the plaintiff in the sum of twenty-five hundred dollars.” The jury found negligence on the part of the telephone company, resulting in injuries to the defendant in error, and for which they assess his damages at $2,500.

It is not shown that the jury found that the wire of the telephone company was charged with electricity at the time the defendant in error came in contact with it, and that the electric fluid was the cause of the injury to the defendant in error, and so it is not clear that there was any error in the ruling of the court, even upon the theory ol’ the case insisted upon by the plaintiff in error.

No point is made on the question of contributory negligence, and the contention of the plaintiff in error seems to be that the petition states the cause of action to have been the injuries which resulted from the fact that the wire at the time of the contact with it by the defendant was charged with electric fluid, for the creation and existence oí which the telephone company was in no sense responsible. Persons, however, must be held to know the ordinary operation of the forces of nature, and to use proper means to avert danger.

If the electric fluid with which the wire of the telephone company was charged at the time was an element or the main element in the production of the injuries to the defendant in error, still it is clear that the displaced wire furnished the means of the communication of the dangerous force which resulted in the injury to the defendant in error.

Science and common experience show that wires suspended iy the atmosphere attract electricity in the time of .storms, and when so suspended and insulated are dangerous to persons who may at such times bo brought in contact with them, and the petition charges that, during electric or thunder storms, such wires ordinarily become heavily charged with electricity, of power sullicient to cause death or great injury to those coming in contact with them; and whether this is so or not is a question of fact.

To say that the agency of the telephone wire in the production of the injury was inferior to that of the electric current, which was the main cause, is not satisfactory. It is, in fact, to admit that the company’s displaced wire furnished the means by which the dangerous force was communicated to and injured the defendant in error. True, it was a new force of power which intervened, with the production of which the telephone company had nothing to do, but upon this point, in Insurance Co. v.

Tweed, 7 Wall. 52, the court says “If a new force or power lias intervened, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.” The new force or power here would have been harmless but for the displaced wire and the fact that the wire took on a new force, with the creation of which the company was not responsible, yet it contributed no less directly to the injury on that account. In Gleeson v. Railroad Co., 140 U. S. 435, 11 Sup. Cl. Rep. 859, the court held that a landslide in a railway cut caused by an ordinary fall of rain is not

an act of God, which will exempt the railway company from liability to passengers for injuries caused thereby while being carried on the railway; and on page 441 (page 861, 11 Sup. Ct.

Rep.) of the opinion in that case the court, quoting from an English case, say “that the plaintiff was entitled to a verdict on the ground that, if a person maintains a lamp projecting over a highway for his own purposes, it is his duty to maintain it so as not to be dangerous to persons passing by; and if it causes injuries, owing to a want of repair, it is no answer on his part that he had employed a competent man to repair it;” citing 1 Thornp. Neg. pp. 846, 847.

No case is cited like the one at bar, but the principles upon which cases of this character have been decided sustain the verdict in this case, and the judgment of the court is affirmed.