Opinion
July Term, 1899.
Albert F. Gladding, for the appellant.
John W. Church, for the respondent.
Under section 102 of chapter 566 of the Laws of 1890 the defendant had a right to have its lines of wire upon, over or under the highway, and, therefore, cannot be treated as a trespasser.
The falling of the wire did not happen because of faulty construction, or any inherent weakness in its poles, or in the attachment of the wire thereto, which rendered it unable to resist a wind storm, but it was carried down by a tree which was uprooted and fell upon it. The defendant did not in fact know of the injury to its lines until the morning of, and about the time of, the happening of the accident to the plaintiff; it then promptly proceeded to repair it. The only claim of negligence that can be made against the defendant, it seems to me, is in not discovering and repairing the injury to its line between the time of the happening of that injury and the time the accident happened. Is that claim well founded?
It is evident that, under ordinary circumstance, when the wires are torn from the poles, notice will be given of that fact by their dropping to the ground and causing an immediate interruption of the current, and the consequent cutting off of communication over the wire, thus immediately giving notice to the company. Here, from the peculiar and unusual nature of the accident, the wire after being torn from its pole was not only held from the ground so as to prevent the current from being cut off, but it was held at such a distance above the highway as not to interfere with the traffic over it, and consequently no notice was received in the ordinary way by the defendant; and when it was removed from the fallen tree and attached to another, it was still in such a position that the current was not interrupted, nor did the wire itself interrupt or interfere with passersby on the highway.
The peculiar character of this accident to the wire of the defendant, and its attendant circumstances, are of such a nature as not to have been reasonably anticipated by the defendant, and, therefore, it was not called upon in the exercise of reasonable diligence to guard against them.
While the defendant might reasonably anticipate that its wires might become broken or dislodged, it also could reasonably anticipate that it would have prompt and immediate notice of that fact by the interruption of the communication; it could not reasonably anticipate the uprooting of trees, and their falling upon their wires, and yet holding them up from the ground in such a manner as not only to prevent the breaking of the current, but also not to interfere with the passersby, and thus prevent notice being given; nor could it reasonably apprehend the happening of accidents of like character, and, therefore, it was under no obligation to adopt a system of supervision and inspection to guard against such unanticipated and unforseen dangers.
It is one of those accidents that probably could not be guarded against, except by a constant patrol or inspection of the lines, and it seems to me that telephone and telegraph companies are under no greater obligations in that respect than are overseers or commissioners of highways, and as to them, it has been held that they are under no obligation to keep the roads in their towns under constant personal supervision. ( Lane v. Town of Hancock, 142 N.Y. 510.)
I cannot find from the evidence that the defendant is chargeable with negligence, and the judgment and order should, therefore, be reversed, and a new trial ordered, costs to abide the event.
All concurred, except MERWIN, J., dissenting, and PUTNAM, J., not sitting.
Judgment and order reversed and a new trial granted, costs to abide the event.