Opinion
No. 25086
Decided May 29, 1935.
Negligence — Automobile guest killed in collision with telephone pole — Questions for jury — Placing pole in highway and proximate cause — Negligence of automobile driver not independent intervening cause of collision — Charge to jury.
1. Where a guest is killed while riding in an automobile which collides with a telephone pole located in an improved portion of the highway 5.1 feet from the pavement, the questions whether the telephone company is guilty of negligence by placing the pole in the highway so as to incommode the traveling public, and whether such negligence is a proximate cause of such fatality are properly submitted to the jury for determination.
2. At the request of the plaintiff the trial judge charged the jury as follows: "If you find by a preponderance of the evidence in this case that plaintiff's decedent was a passenger in said car and that the defendant, The Ohio Bell Telephone Company, and the driver of the automobile in which plaintiff's decedent 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 decedent's death complained of, then your verdict may be against the defendant, The Ohio Bell Telephone Company alone, that is to the amount, of course, you find for plaintiff if the decedent was in the exercise of Ordinary care." Held: Under the evidence, the act of the driver of the automobile in hitting the pole was not as a matter of law an independent intervening cause, and the giving of the charge as requested was not prejudicial error.
ERROR to the Court of Appeals of Stark county.
On September 18, 1933, Anna E. Lung, as administratrix of the estate of Arthur F. Locke, deceased, began an action in the Common Pleas Court of Stark county against The Ohio Bell Telephone Company to recover damages for wrongful death. The evidence discloses that the plaintiff's decedent, a young man 22 years of age, at about midnight on the 29th day of December, 1932, left his home at Massillon with one William D. Kreiger in the latter's automobile bound for Alliance, Ohio. They went to Canton, Ohio, and from there proceeded on United States Route No. 62 towards their destination. When they reached the junction of United States Route No. 62 and State route No. 173, commonly known as Houser's Corners, they ran into a telephone pole owned and maintained by the defendant telephone company. The pole was broken off, the automobile demolished, plaintiff's decedent instantly killed, and Kreiger died a few minutes later without regaining consciousness.
From Canton to Houser's Corners, United States Route No. 62 extends from southwest to northeast but at the junction of the two highways turns directly east. State Route No. 173 at the point where it joins United States Route No. 62 extends from southwest to northeast and is practically a continuation of United States Route No. 62. There is a very slight curve to the left as one approaches the junction on United States Route No. 62 from the southwest and continues on the way into State Route No. 173. The two routes form a "Y" at this junction and the angle of the "Y" is approximately 80 degrees. In the "Y" thus formed is located a filling station facing the junction, and from this station to both highways cinders are packed, completely filling the "Y" up to the pavements, each of which is of brick. The pole in question is located in front of the filling station, 5.1 feet from the brick pavement on United States Route No. 62 and nearly opposite the point where the turn east on the route is completed. If a tangent line were to be drawn in the center of that part of United States Route No. 62 where it is straight southwest of the junction it would be found that the telephone pole is located exactly 24 feet to the east of the tangent line extended. This pole is on the right of way of United States Route No. 62, was placed there originally by the defendant company, and was maintained by it thereafter for many years and up to the time of the accident. The cindered part of the highway around the pole was used for a long time prior to the accident by autoists going into and coming out of the gas station.
The plaintiff in the petition alleges negligence of the defendant company in the following language: "Plaintiff further says that the said telephone pole as placed and maintained by the defendant, The Ohio Bell Telephone Company, on said road, did then and there incommode the public in the use of said highway.
"Plaintiff further says that the defendant, The Ohio Bell Telephone Company, was careless and negligent, in placing said telephone pole on the improved portion of United States Route No. 62, and was careless and negligent in permitting the said telephone pole to remain on the improved portion of said highway, and that the defendant, prior to the accident herein complained of, had knowledge of the dangerous nature of said telephone pole as placed on the highway at this point."
The court in its charge defined negligence and ordinary care in the usual way and explained to the jury that negligence is not presumed but must be proven, that the mere fact that the automobile came in contact with the pole raises no presumption of negligence on the part of defendant company and that the burden was on the plaintiff to prove negligence of defendant by a preponderance of the evidence.
The court also read to the jury Section 9170, General Code, which reads 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 court thereupon stated that it was for the jury to determine whether the placing of the pole where it was did incommode the public in the use of the highway at that point. The court also made it plain to the jury that it was for them to determine from the evidence whether the placing and maintaining the pole at that particular place was negligence.
Upon the trial in the Common Pleas Court a verdict was returned in favor of plaintiff for $2500 and judgment was entered thereon. Error was prosecuted to the Court of Appeals and in that court the judgment was affirmed on the authority of Cambridge Home Telephone Co. v. Harrington, 127 Ohio St. 1, 186 N.E. 611. This court sustained a motion to certify and the cause has been submitted on error.
Messrs. Henderson, Burr, Randall Porter, Messrs. Burt, Kinnison, Carson Shadrack and Mr. R.H. Treffinger, for plaintiff in error.
Messrs. Amerman Mills and Mr. Donald W. Seiple, for defendant in error.
Evidence was adduced to show that on leaving Massillon William D. Kreiger was driving the automobile, which belonged to him, and that Arthur F. Locke was his guest. There were no witnesses as to what happened from that time until the collision with the pole. There was therefore a presumption that the situation as to who was driving continued since there was no evidence to the contrary and no different presumption arose. Industrial Commission v. Carden, ante, 344, 195 N.E. 551. The evidence adduced was sufficient to warrant the jury in finding that at the time of the collision Kreiger was driving his own car and that plaintiff's decedent was riding with him as a guest. The guest statute, Section 6308-6, General Code, was not in force at that time; moreover, the driver's negligence would not be imputed to plaintiff's decedent. Hocking Valley Ry. Co. v. Wykle, Jr., a Minor, 122 Ohio St. 391, 171 N.E. 860. While no question is raised in this connection the status of plaintiff's decedent must be borne in mind.
The telephone company claims that the trial court erred in refusing to direct a verdict in its favor for the reason that as a matter of law it was not guilty of negligence. The pole was placed and maintained by the defendant company 5.1 feet from the brick pavement and was on an improved portion of the highway which the driving public used at times, and under the circumstances of the case it was a question of fact for the determination of the jury whether it was where it would incommode the public in the use of the highway, and, if so, whether the defendant was guilty of negligence in placing and maintaining it there. Cambridge Home Telephone Co. v. Harrington, 127 Ohio St. 1, 186 N.E. 611.
The telephone company further contends and claims that if it were guilty of negligence, such negligence was the remote and not the proximate cause of the collision and resulting harm and further that this court should so find as a matter of law.
The telephone pole played a part in wrecking the automobile and causing the death of the occupants. It is purely speculative to say that if the automobile had missed the pole, it would have run on and hit the gasoline pumps or the filling station with the same fatal result. The driver, perhaps, may have made the turn on the cinders and regained the main highway. In our judgment the question of proximate cause was one for the jury and not for the court.
However, the telephone company relies upon Lake Shore Michigan Southern Ry. Co. v. Liidtke, an Infant, 69 Ohio St. 384, 69 N.E. 653. In that case it appears that an action was brought by an infant, six years of age, through its next friend, against the railway company to recover damages for negligence in leaving a hole in the wire fence enclosing a railroad right of way, through which hole the boy passed and suffered injury from a moving train. The court held that the opening in the fence was not the proximate cause of the injury. That case does not afford an exact parallel to the instant case.
If Kreiger, the driver of the car, was guilty of negligence in running into the pole and the telephone company was guilty of negligence in maintaining the pole where it was, that is, if the negligence of both together was the proximate cause of the death of plaintiff's decedent, actionable negligence on the part of the telephone company would exist; and, again, if the negligence of the telephone company was a proximate cause of the death of plaintiff's decedent, the fact that some other cause for which neither party to the action was to blame, proximately contributed to the harm would not avail to relieve the telephone company from liability. Hocking Valley Ry. Co. v. Helber, Admr., 91 Ohio St. 231, 110 N.E. 481. Nor, for reasons hereinafter given, can it be said as a matter of law that the act of the driver was an intervening independent cause. The collision between the automobile and the pole produced the compact that resulted in the deaths; and the question whether the negligence of the telephone company, if any, in placing and maintaining the pole where it was, was a proximate cause of the fatalities, was one of fact for the jury.
For the reasons given there was no prejudicial error committed in overruling defendant's motion for a directed verdict.
The remaining contention of plaintiff in error is that the court erred in giving to the jury plaintiff's requested charge which was as follows:
"If you find by a preponderance of the evidence in this case that plaintiff's decedent was a passenger in said car and that the defendant, The Ohio Bell Telephone Company, and the driver of the automobile in which plaintiff's decedent 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 decedent's death complained of, then your verdict may be against the defendant, The Ohio Bell Telephone Company alone, that is to the amount, of course, you find for plaintiff if the decedent was in the exercise of ordinary care."
It is claimed that this statement of the law is improper for the reason that concurring negligence cannot evolve proximate out of remote cause. The argument advanced in support of this proposition is that the pole was merely a passive, inactive condition which was rendered injurious by the intervening independent act of the driver of the automobile. It is true that the pole was static, but for the defendant company to carelessly and negligently maintain it in a position where it would incommode the public in its use of the public highway would constitute negligence by a continuing act of malfeasance. In our judgment the act of the driver was not as a matter of law an independent intervening cause, as such act of the driver and the negligence of the telephone company, if any, were existent and concurrent at the time of the collision. The charge was therefore proper.
There being no prejudicial error on the face of the record, the judgment will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON and ZIMMERMAN, JJ., concur.
MATTHIAS, J., dissents.
JONES, J., not participating.