Summary
finding no error in jury charge indicating that negligence of driver and utility company could be concurrent
Summary of this case from Turner v. Ohio Bell Tel. Co.Opinion
No. 23921
Decided June 7, 1933.
Highways — Traveling public may use entire right of way, when — Telegraph company's poles, piers and abutments not to incommode public use — Section 9170, General Code.
1. The traveling public has a right to the use of a public highway, to the entire width of the right of way, as against all other persons using such highway for private purposes.
2. Section 9170, General Code, provides as follows: "A magnetic telegraph company may construct telegraph lines, from point to point, along and upon any public road by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires; but shall not incommode the public in the use thereof." The last clause of that section constitutes a danger signal to public utilities using the highways for their own private purposes, to the effect that if they place "posts, piers and abutments" within the right of way of the highway, they must not prejudice the superior rights of the traveling public by the location and maintenance of such posts, piers or abutments.
ERROR to the Court of Appeals of Guernsey county.
There is little dispute as to the facts in this case. From the testimony it appears that Emma Burlingame, on the morning of April 5, 1932, at about the hour of 8:30 or 9 o'clock, procured an automobile belonging to her son and started to drive from Byesville to Cambridge on what is known as state route No. 21, or the Cambridge-Byesville road. She stopped on her way and picked up her sister, Elizabeth Harrington, the defendant in error. Elizabeth Harrington could not drive a car, knew nothing of the operation of an automobile, and was taking no part in its operation at the time of the accident.
The two sisters proceeded toward Cambridge, Emma Burlingame doing the driving. It was their purpose to attend church at Cambridge. They arrived at a point known as stop 9 on the road. The testimony from this point is in conflict.
This is an improved highway, having a sixteen-foot bituminous macadam surface, with six feet of water-bound macadam on each side thereof. The berm was fit for travel and was in use, being a hard-surfaced berm. There was a ditch on the right-hand side of the road, as the car proceeded toward Cambridge, eighteen inches to two feet in depth, this ditch being some twelve inches to the right of the berm. Between the ditch and the macadam there was a telephone pole, owned, maintained and operated by the plaintiff in error. There is some dispute as to the exact location of this pole. The testimony of witnesses for plaintiff below was to the effect that the pole was actually in the edge of the water-bound portion of the macadam. The testimony of the witnesses for the telephone company was to the effect that it was within eleven inches of the macadam. There was some testimony that after the accident the stub of the pole was struck by a car operated by one Walter Green, and driven farther away from the berm than it was at the time of the accident complained of in this case.
Emma Burlingame was driving the car around a curve immediately before reaching this point, and it is said that she pulled from the tar-bound road to the berm to make room for cars coming from the opposite direction; that she hit a rough spot in the berm and the car jumped slightly, the right front fender and right wheel of the car crashing into the pole maintained by the telephone company.
There is some dispute along this line, to the effect that the car was driven into the ditch first and then hit the pole. This is rather inconsequential, as that was a fact to be determined by the jury.
Elizabeth Harrington, defendant in error, was injured in this accident to the extent of having her right leg and kneecap broken.
There is testimony in the record to the effect that this pole had been struck a number of other times prior to this accident, and this testimony went into the record without objection.
In the trial court a verdict was rendered in favor of Elizabeth Harrington and against the telephone company, and judgment was rendered upon the verdict. The Court of Appeals affirmed this judgment, and error is now prosecuted to this court to reverse such judgment.
Messrs. Carnes Campbell, for plaintiff in error.
Messrs. Scott Scott and Mr. W. Kirk Deselm, for defendant in error.
Plaintiff in error contends that Emma Burlingame and Elizabeth Harrington at the time of the accident were engaged in a joint enterprise; that the, act of Emma Burlingame was the act of Elizabeth Harrington, hence she cannot recover. Plaintiff in error further claims that it had a right, under Section 9170 of the General Code of Ohio, to plant its pole at the point in question, and that by so doing it did not incommode the public in the use of the road.
The telephone company interposed two defenses, the first amounting to a substantial denial; the second was to the effect that if plaintiff below was injured, as claimed by her, it was because of the carelessness of some one other than the telephone company.
It is not disputed that Emma Burlingame and Elizabeth Harrington were proceeding to church when the accident occurred. We cannot subscribe to the contention that this was a joint enterprise, as it nowhere appears that Elizabeth Harrington had any authority to, or in any wise attempted to, control the operation of the automobile. This court has defined "joint enterprise" in the case of Bloom v. Leech, Admr., 120 Ohio St. 239, 166 N.E. 137. The gist of this definition is to the effect that each member of such enterprise has the authority to act for all in respect to the control of the agencies employed to execute such common purpose. We fail to see wherein these ladies, at the time of the accident, were engaged in a common enterprise.
Plaintiff in error insists that it is given some immunity by reason of the provisions of Section 9170, General Code. This section provides as follows: "A magnetic telegraph company may construct telegraph lines, from point to point, along and upon any public road by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires; but shall not incommode the public in the use thereof."
Plaintiff in error seeks to apply the definition of "road, " as given in the case of Elms v. Flick, 100 Ohio St. 186, 126 N.E. 66. This case involved the "meeting and overtaking" statute, wherein it was provided that persons operating motor or animal drawn vehicles under certain conditions should yield one-half the road. In meeting, each should yield to the other the right one-half of the road. In overtaking another vehicle, the driver or operator of the rear vehicle was required to give an alarm or notice to the driver of the vehicle in front of his desire to pass; then the driver or operator of the vehicle in front was required to yield the left one-half of the road.
This court in that case held that the term "road" as used in that section should be construed to mean "the improved portion of the road, where it is disclosed that it is of ample width to permit the passing of automobiles thereon with safety."
We have a different condition in the instant case. The traveling public has the right to the use of the highway to the entire width of the right of way as against all other persons using such highway for purposes other than travel, except those upon whom devolves the legal duty to maintain and repair such highway.
The highway is primarily constructed for purposes of travel, and not as a site for monuments, billboards, telephone or telegraph poles, or any other device that may create an obstruction within the limits of the right of way. The Legislature must have had this rifle in mind when it enacted Section 9170, General Code. The last clause of that section, "but shall not incommode the public in the use thereof," is a danger signal to public utilities using the highways for their own private purposes. They are placed upon notice, to the effect that if they erect "posts, piers, and/or abutments" within the right of way of the highway, they must not prejudice the superior rights of the traveling public in so doing.
It is further insisted that the court committed error in his charge to the jury in the use of the following language: "If you find by a preponderance of the evidence in this case that the defendant, The Cambridge Home Telephone Company, and the driver of the automobile in which file plaintiff was riding were both negligent, then such acts of negligence would be concurrent, and if they proximately contributed to — that is, were the direct and proximate cause of the injury to plaintiff that she complains of, then your verdict may be against the, defendant, The Cambridge Home Telephone Company alone; that is to the amount, of course, You find for plaintiff."
We are unable to find any error in this charge. It surely states the law. Had the driver of the automobile been joined as a party defendant with the telephone company, then this would have been an erroneous charge; but plaintiff below pursued the telephone company alone. Hence, there was no error in the use of this language.
Plaintiff in error further contends that Elizabeth Harrington, plaintiff below, failed to prove that the locotion of the telephone pole was the proximate cause of her injury. The company claims that it cannot be held to have foreseen, in the exercise of ordinary care, that the placing of its pole in the position in which it was placed might cause injury.
The telephone company was not an insurer of the safety of the traveling, public, but the statute that gave it the right to use the highway for its own private purposes made plain that the company should not incommode the public in such use, and to that extent increased its degree of anticipation.
There was conflict in the testimony on the question of the proximate cause, and the jury found in favor of the plaintiff below. This court cannot disturb that finding.
We find no error in the record, and the judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY and ALLEN, JJ., concur.
I cannot concur in the view that the traveling public. has an unrestricted right to the use of the entire width of the right of way of a highway as a place of public travel and transportation. That would imply a duty upon the part of those responsible to keep the entire right of way in condition for public travel and transportation. Section 9170, General Code, and cognate sections, recognize the public use and service of telephone lines and grant a right subject only to the restrictions and limitations thereby imposed. It is not therefore an unauthorized use; nor is it a private use. The provisions thereof, so limiting the use of the road for the maintenance of telegraph and telephone poles as not to incommode the public, have reference to the use of the road by the public in the usual and ordinary manner, which contemplates the use of the portion thereof designated for travel and which ordinarily does not include the entire right of way.
The rule here announced would authorize a recovery even if the telephone, pole, instead of being in the edge of the ditch, and more than six feet from the outer edge of the macadam road, which is sixteen feet in width according to the evidence most favorable to the plaintiff, had in fact been beyond the ditch and just inside the bounds of the right of way. The result of any particular suit is of comparatively little consequence. The announcement of the law which fixes rights and prescribes duties and thereby governs future cases is of far greater importance.
JONES, J., concurs in the dissenting opinion.