PACIFIC TELEPHONE & TELEGRAPH CO. v. HOFFMAN et al., 208 F. 221

MORROW, Circuit Judge (after stating the facts as above). 1.

It is contended by the defendant that as between the obstruction to the passage of the automobile caused by the guy wire, and the obstruction caused by the railroad crossing, the evidence is not sufficient to show that the guy wire was the cause of the accident, invoking the rule that where one of two or more things may have caused the accident, for one of which the defendant is responsible, and for the other he is not, it is not for the jury to guess or speculate between these causes, and find that the negligence of the defendant' was the real cause of the accident, where there was no satisfactory foundation in the testimony for that conclusion.

Patton v. Texas & P. Ry. Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361. The rule is not applicable in this case. There is no question but the car came into collision with the guy wire, and we think there is in-the testimony a sufficient foundation for the conclusion that the guy wire, if not the sole cause, was either a concurrent or a successive cause of the accident.

But in appealing to this rule, the defendant seeks to eliminate the guy wire altogether as an independent intervening cause of the accident, basing this theory, it seems, upon the testimony of the witness who, on the morning after the accident, inspected the ground and saw no tracks of the car between the railroad crossing and the guy wire, a distance of about 25 feet. From this testimony the defendant draws the inference that when this car, weighing nearly two tons, met the obstruction of the railroad crossing, it made a clean jump from the railroad crossing to the guy wire, a distance of about 25 feet.

The common knowledge of any one of experience would be that such a projection of the car would be impossible; but the obvious answer to such a theory, whatever its merit or demerit, is that it was a question of fact for the jury and not a question of law for the court.

But assuming for the defense the more reasonable theory that the car may have been diverted from its course, or the driver lost steering-control of it, by the obstruction of the railroad crossing, and the car thereby brought into collision with the guy wire, still it would be a question for the jury to determine how far the preceding event operated in producing the final catastrophe. As said by the Supreme Court of the United States in Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 476 (24 L.

Ed. 256): “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 obvious province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new or independent agencies, and this must be determined in view of the circumstances existing at the time.” There is also another well-established rule not to be overlooked in this connection, and that is that, if concurring or successive acts of negligence of numerous persons combined together caused the plaintiff’s injury, 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.

Supplement to Thompson’s Law of Negligence, by White, par. 75. We think that, with respect to this feature of the case, the evidence that the guy wire was one of the proximate causes of the accident was sufficient to go to the jury. 2. The next question relates to the character of the obstruction considered with respect to its location in the public highway. As has been stated, the public highway was 60 feet wide, and the whole of this width had been dedicated to public use. By

section 8308 of Remington and Ballinger’s Codes and Statutes of the state of Washington, it is provided that it is a public nuisance to obstruct or encroach upon the public highway, and in

section 8309 it is provided that: whicli injures or * * * obstructs * * any * * * "Nuisance consists in unlawfully doing

an act * endangers the * * 15 safety of others, * * * or tends to obstruct, or render dangerous for passage street or highway.” * O By

section 9314 it is provided: “Any telegraph or telephone corporation, or the lessees thereof, doing business in this state, shall have the right to construct and maintain all necessary lines of telegraph or telephone for public traffic along and upon any public road, street or highway * * * and may erect poles, piers or abutments for supporting the insulators, wires and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the * * * highway.” The pole to which the guy wire in question was attached was located on the northern boundary of the highway at a point where the highway turned from the railroad crossing.

The guy wire was anchored and embedded in the ground about 31 indies from the edge of the beaten and traveled portion of the highway, and at a point where an automobile making the turn in the road from the crossing, and the driver not observing the obstruction of the wire, might cut across the protruding curve and strike the wire. The question is: Did this guy wire so located incommode the public use of the highway, or was it a nuisance by reason of the fact that it endangered the safety of others or tended to obstruct or render dangerous passage over the highway?

This was a question of fact to he submitted to the jury with proper instructions. This the court did, instructing the jury that the statute granted to the defendant the right to erect and maintain its telephone poles and lines along the public highway, subject to the condition that they should not he erected so as to incommode the public use of the highway; that, if the jury found from the testimony that the poles were so erected as not to incommode the public use of the highway, then the verdict should be for the defendant. To this instruction the defendant, of course, took no exception.

The court then referred to sections 8308 and 8309 of Remington and Ballinger’s Codes and Statutes of Washington, and, proceeding with its instructions, stated that the grant of a right of way to the telephone company was, of course, subject to the limitation and" condition in the statute that any person who placed a permanent obstruction in the public highway, of such character as to endanger the use of the highway for ordinary public travel, committed a nuisance and was liable in damage to any person who was injured by reason of the maintenance of that nuisance without fault on his part.

To the latter instruction the defendant excepted, but without specifying the grounds of such exceptions. These exceptions were not sufficient under the well-established rule in the federal courts requiring that, where a party excepts to an instruction of the court, the ground of the exception must be specified, so that the court may have an opportunity to supply any deficiency or correct any error that may have been made in the instruction before the jury retires from'the courtroom. McDermott v. Severe, 202 U. S. 600, 610, 26 Sup. Ct. 709, 50 L. Ed. 1162; Dotson v. Milliken, 209 U. S. 237, 242, 28 Sup.

Ct. 489, 52 L. Ed. 768. But this objection to the exception is not material in this case, since the general exception relied on is that the court did not, as requested by the defendant, instruct the jury to return a verdict for the defendant.

With respect to this feature of the case, the defendant contends that the pole and guy wire were lawfully placed, if they did not “incommode the public use of the highway,” and that the public use here referred to was the reasonable and ordinary use of the highway, and not every possible use or a use having reference to unusual conditions; that the automobile had no greater right to incommode the ordinary and reasonable use of the highway by the telephone company than the latter had to incommode the automobile in its ordinary and reasonable use of the highway.

In other words, these rights were reciprocal, and had reference to the usual and ordinary uses and conditions of the highway.

But the primary and general use of a highway is for travel, and any obstruction that renders it dangerous or unsafe for that purpose is unlawful; and, although a telephone company may have the right to occupy a highway with its poles, yet if it secures them in the highway by guy wires so as to endanger the public travel, or the safety of individuals in the reasonable and ordinary use of the highway, such method of securing and maintaining its poles is an obstruction, and the law declares that such an obstruction is a nuisance, and the act of maintaining such a nuisance negligence.

Shearman & Redfield on the Daw of Negligence, § 365; Addison on Torts (8th Ed.) p. 890; Thompson’s Commentaries on the Law of Negligence, vol. 1, § 1239. In the case of Sheldon v. Western Union Telegraph Co., 51 Hun, 591, 4 N. Y. Supp. 526, the defendant had constructed a telegraph line along the road in question, and in connection with it maintained a pole at a point where there was an angle in the road, so that the tendency was that the pole would fall away from the road. • The pole was quite close to tlie fence constituting the boundary of the road.

To prevent the pole from falling away from an upright position, the defendant sank a stone close to the traveled part of the highway, fastened a wire to it, carried the wire to the telegraph pole above the ground, and attached it to the pole. By means of this anchor and wire the pole was held firm. There were two apple trees on the same side of the road as the anchor stone, which, when in leaf, prevented the wire being seen by persons using the highway. There was a bank on the opposite side of the road which forced the traveler close to the sunken stone.

The plaintiff was driving a team of horses along the road, and, while endeavoring to pass another team, collided with the wire and was thrown from the wagon. The court said: “Tlie question is a peculiar one in tills, Ilia! both parties hart a right to use the road; the plaintiff because it was a public highway, and the defendant because of legislative permission to use the highway. The first question is: AVhich right is paramount;? Highways are well established and defined in law. The right, to use them as they have been accustomed to lie used from time immemorial cannot be questioned.

Tlie right of the defendant is subject to the iiublic user. The defendant may not use tlie road so as to obstruct or render dangerous the public travel. If this correctly states the rights of the parties, a case of injury by negligence of the defendant is clearly made out. The wire between the stone and the pole was not easily seen, under favorable circumstances.

The wire was so close to the road that It was a dangerous snare to travelers, and, besides this, the road was so narrow by reason of the bank, and the traveler’s view was.so obstructed by the trees, that the jury was justified in finding the defendant guilty of negligence.” In Wilson v. Great Southern Telephone & Telegraph Co., 41 Ta. Ann. 1041, 6 South. 782, a guy wire had been erected in order to sustain and strengthen the posts of the defendant company placed on neutral ground on St. Charles avenue, in the city of New Orleans.

The posts were situated about three feet six inches from the street, and the guy wire was some six or seven feet above the ground, but not high enough to be clear of vehicles passing on the neutral ground. Outside of the asphalt pavement, and inside of the neutral ground, about 3Ys feet from the edge of the pavement, there was located a fire plug. The plaintiff war, the driver for an engine company, and in attempting to turn his engine for the purpose of connecting the same with the fire plug it partly went on the neutral ground. The driver was struck by the guy wire and severely injured.

The court said: “The telephone and telegraph company had the undoubted right to erect Its poles, and to secure them, but this permission does not authorize them to put them up, and to secure them, by wire's strung so as to endanger human life. The city ordinances forbid the use of the neutral ground on St. Charles avenue to carriages and other vehicles; bul this prohibition did not authorize the defendant company to erect its wires so as 1o injure any one who might be trespassing upon the neutral ground. No one, even to protect himself against trespassers, has a right to erect death trap!! on his premises.

The posts were placed in dangerous proximity to the street, and ordinary prudence, and a due regard for the safety of tlie public, would have dictated that the guy wire should be placed beyond the possibility of injuring- any one. I'ersons using tlie street without any intention of violating the city law might by accident be driven with a vehicle on the neutral ground.

In a case of this kind, it would hardly be considered that he contributed to his own accident if he should be injured by the wire.” It is clear that in the present case there was evidence tending very strongly to show negligence on the part of the defendant in erecting and maintaining-the guy wire at the point where it was located on the highway, and that question of negligence was for the jury to determine under appropriate instructions. 3.

It is assigned as error that the court refused to give a requested instruction concerning evidence relating to the unlawful rate of speed of the automobile prior to the accident, and the negligence of the plaintiffs who were riding in the machine at that time, in not protesting to the driver against such unlawful rate of speed.

The court gave an instruction to the jury upon that subject as follows: “If you find from tlie evidence that the automobile mentioned in this action was driven along the public highway in Walla Walla county at an unlawful speed, and that it was known to the plaintiffs or either of them that it was being driven at a rate exceeding 24 miles an hour, and that to drive the same at the rate of speed it was being driven in the nighttime was dangerous, and if either plaintiff having this knowledge failed to warn the driver or asked him to stop and permit such plaintiff to get out, if he or they had time and opportunity to do so, then such plaintiffs voluntarily committed themselves to the action of the driver of the automobile, and he is responsible, not for the act of the driver, but for his own act in failing to take the precautions which under such circumstances he should have taken, and if, in addition thereto, such rate of speed is shown to have contributed to the accident, then such plaintiff cannot recover in this action.” The objection to this instruction is "that it contains this clause: “And that to drive the same at the rate of speed it was being driven in the nighttime was dangerous.” It is contended that the effect of this instruction was to instruct the jury that it was not sufficient to charge the plaintiffs with contributory negligence, unless they knew that such unlawful rate of speed was dangerous in the nighttime.

The objection is without merit. The question was: Did the plaintiffs know that the automobile was being driven at a dangerous rate of speed? If they did, and the rate of speed contributed to the accident, and they did not protest against it, then the jury were justified in inferring that the plaintiffs were guilty of contributory negligence.

The automobile was being driven in the nighttime, and the court called the attention of the jury to that fact, which would appear to be a feature of the instruction favorable to the defendant, since a high rate of speed must be more dangerous in the nighttime than in the daytime. We are of opinion that the instruction given by the court was correct and that the case was submitted to the jury with appropriate instructions. The judgment of the court below is therefore affirmed.