810
1'm>ERAI,nRJllNBTJl}R, 1;' ;, I
vol 50.
SOUTHWESTERN TELEGRAPH!' &: TELEPHONE CO. 17. ROBINSON. (01lrcuit Oourt oj AppealS, F'ifth Oircuit. May 50, 1892,) TELEPlIONE CoMPANIES-NEGLIGENCE-SUSPBNDED
A mlephone company which for several weeks permits its wil'S to remain suspended across a public a tew feet from the ground. Is liable to a traveler who in contact thel'ewith during an electrical storm. and is injured by a discMrge Qf electricity which had been attraoted from theatmos.,here, since the electllicity would have lIeen harmless except for the wire.
.STORM.
In Error to the Circuit Court of the United States {or the Northern District ofTexlls. At Law. Action by J. B. Robinson against the Southwestern Telegraph & Telephone Company for personal injuries. Verdict and judgment forplainti/f. Defelldant brings error. Affirmed. Statement by BRUCE, District Judge: Plaintiff' in ,error was sued by defendant in error in the district court ot Cooke county, Tex., for damages in the sum of $12,000. He states his cause of action as follows: "Your petitioner, J. B. "Robinson, a resic1ent of Cooke county, Tex., comTt'legrapb & Telephone Company, a prh'ate pll\ining of the corporlitlon'fncorporated under the laws of the state of New York. but doing bilsiup.ss In tbe state of Texa!! and baving a legal office In Cooke cOunty, TexlIs, respectfUlly represents that on or about the 2Uth day of Octobl'r, A. D. 1889. tbe defendant owned and operated a telephone line between tbe cities of Gainesville and Dallas, Tex., and intermediate points. the sa,id being made by a single wire suspended by means of polf's in the ma'nner of telegraph wires. usually ahout thirty feet from the groond; that its said teleplJOue line or wire crossed the public higbway between Dallas and McKinney, known as the 'Dallas and McKinney Road,' about five miles south of Plano, in Dallas county; that at said points and over sai4,road on tho aforesaid date. allLl for several weeks prior thereto, the defendant negligently suffered and permitted its aforesaid wires to be and remain suspended uver said road within a few feet of the ground. and within such proxiuJlty thereto thattrl\velers 011 the said road unavoidably and necessarilycame in contact therewitb; that the said wire so suspended over said road, which was a public highway between two large cities. and daily traveled by many people in vehicles and on horseback, all of which was known to the defendant, was a dangerous and unlawful Obstruction of said road, and II public nuisance, and that the defendant 08 the aforesaid date, and long prior thereto, knew of tbe condition of ,said wire at said poiut, or migllt have known it by the eXflrcise of reasonable but permitted it to remain In the condition afo'resaid; .that the said wires are tbe best known conductors of: 'electricity, and are 'the 'only vehicles in general use for the transmission of electric currents,: and, during electric or thunder storm!!, such viIy ch;utged with Hlectr j city. of powHr s uilicient to wires ordinarily become, indict dQ great to tbose cUlJ1ing in contact with ttli'm, and that from tJ1i\1 fllct arises the PIl,c1llia,r danger of allowing such wires to remain suspenLieusolow·ttiat people .wdr:come in contact witb ihem.-all of which was on the aforesaid date liildlohg'prior thereto wpll known to the defendant. 01' might have been known to it by the exercisH of ordinary care; that on the afternoon of the aforesaid date, as plaintiff was traveling on horseback on tbe
SOUTHWESTERN TELEGRAPll &: TELEPHON'm CO. V. ROBINSON.
811
sBfdDallas and McKinney highway dnring the prevalence ofaheavythunder storm. such, however. as is usual in that section at that season of the year. became in contact with the defendant's said wire at the point aforesaid. in conseqnence of its being suspended so near the ground j that it was a dark, stormy evening. and that the wire was in visible to plaintiff. and plaintiff carne in contact with it through no fault or negligence on his part. but through the gross nl'gligence and carelessnessofthe defendant, as aforl'said, in leaving said wire sU8pended over a public highway within a few feet of the ground; that at the time said wire was heavily charged with electricity generated by the storm then as aforesaid, and, on cllming in contact with it, plaintiff received a full charge of the fluid. which knol"kl'd him from his horse and completely paralyzl'd him for t!le time being, depriving him of the power of speech and locomotion; that plaintiff laf in the road where he had heen thrown. in the min and storm, unt,l picked up by a passerby. and carried to a neighboring h011se, and thAre plaintiff was confined to his bed for more than five weeks, suffering during this 1'eriod severe bodily pain and Plaintiff represents that he is but little past middle age. and mental before said injuries was of a vigorous mind and robust coniltitulion, and capable of great enrlul'ance and physical and mental actiVity, bllt that, in consequl'nce of said injuries, his health and mental facu!ties have been permanently and seriously impaired, and his capacity to pursue his usual avocationprartically destroyed, to his actual dalllages ten thousand dollars. Pl.liutilf further represl'nts that. on account of said injuries, he has been put to gn-at expl'nse for medical attent,on. and that his ('onditioll is such as to require, for the futurl', constant medical treatment and the care of his familY1 who are thus withdrawn from their customary dutil'S, to his actual damages two thousand dollars. Wherelorf'O, plailltitf fllll'S, and prays that the defl'ndant he cited to answer herein, anti that on final hearing' he have jutlgmentfor his said damI ages, costs, and for furtller general anLl special relief." The case was removed into the circuit court of the United States for the northern district of Texas, and the delimuallt answered ail follows: "Now comesdel'l'ndant. and for answer by way of demurrer to plaintiff's cause of aetioll !lays, fir!!t, that the plailltiff ought not to have and maiutain this cause, lor that his originai petitiun does nut state factssllfficient to constitute a·cugnizable and enforceable demand before the law. Of this he prays the jUdp;mpnt of the cOljrt. And for further answer, if such be necesllary, defendant says it d,'nies each allli singular' the allegations III the plaintiff's pl'tition cunlaint'd, and says it is not guilty of the wrongs, injuries, and neglii!ent conLlll('t charged; and of this it puts itself upon the country. Anll, answerinp; furtht'r, it says if plaintiff was injured in any manlier, it was the of result of his npgligenl'e,-tliat he fail d to exercIse that r,'ason;.b e care, in travl'Jing at the dangerous lime in which he alll'gf's he was traveling, and in avoidwg cou.tact with delendallt"s Iille during a thunder storm, that a reasonal,ly 1'r1ldent man ought to have eXl'rdsed under Ilk.. c.rcumstances. When-fore, defendant says pJaiutiff ought not to recover, and or this it pUI.s itself uJlon the country." The caSe was hf'arJ, and the demurrer was overruled, to which ruling the de:enullnt excepted, and the trial before court and jury resulted in a verdict for plaintUl' in the sum of $2,500, for which amount, with interest and costs, judgment was afterwards rendered. Motion for new trial was filed, Ileard, and overruled by the ·court. The assignment of error is that in the record of the proceedings 01 the auove cause in the trial court there is manifest error, in this, to wit:
r'.l'
. n:pERAL REPORTER, vol. 50.
·!'The'court erred in o\terruling the "geheral demurrer of'the saId SOuthTelegraph &; Telephone Company to the original petition and cause Qf aetion of the said J.B. Robinson, as will appear from an inspection of the I\aidpetition, demun'er, and jUdgment of the court thereon." JohnW. Wray, for plaintiff in error. M·. L, Orawford, W. O. Davis, and J. L. Harris, for oefendant in error. Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges. . EOOCE, District Judge, (after stating the facts.) The question and the only question for review here is whether the plaintiff stated a cause qf 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 Rau1'Oad 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 under the existing circumstances, would not have done. lt .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 iipon the public Travelers were liable to collide with it, and iiljutiousconsequences to them would follow as the natural and probable *esultOf such contact. Article 622 of the Revised Civil Statutes of Texas
"Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers. abutments, wires, al)d .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 pubUein the:use of such roads. streets, or waters." 1 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 chargeof electric fluid from the cloudsal1d storm then prevailing. So that it. is difficult to see how this verdict CQuld be disturbed even if the contention of the plaintiff in error i.s 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 clahnedhere that the court misdirected the jury in its charge on the r;lwofthe case, and the verdict is: . "We,thejury, find for the plaintiff ip. the $PDlof twenty-five hundred dollars." The jury found negligence qn.the part of the. telephone company, resulting in injuries to the deand for which they assess his damages at $2,500. It is nO,t ,spawn the jury found that the wire of the telephone company was charged with electricity at the time the defendant in error came in