Chesapeake & Potomac Telephone Co. v. Noblette

Parke, J., delivered the opinion of the Court. The appeal is from a judgment on the verdict of the jury in favor of William B. Noblette, plaintiff, and against The Chesapeake and Potomac Telephone Company of Baltimore City, defendant, for the alleged negligence of the defendant in the burning of the grist mill of the plaintiff. The negligence charged is a failure to keep the ground wire of a telephone installation in repair. It is asserted that this default was the cause of the mill being struck and set on fire by lightning during a thunderstorm.

The frame mill of two and one-half stories was in the form of a rectangle whose dimensions were twenty-four feet by thirty feet. The mill was about twenty-five feet high. The small, eight by ten feet, office was in the northwest angle of the mill and the engine room was in the northeast corner. From the rear or east side of the building an addition, eight feet high, projected.

It was used for the gasoline motor which supplied the power to operate the machinery of the mill and the grain elevator which extended to the third floor. The office was entered by a solid door, and sunlight was admitted through an office window on the west side of the office. A telephone was mounted on the south wall of the office, opposite to the door. The county road ran north and south a short distance away from the west side of the mill.

The mill dam was near the north end of the mill, and the residence of the owner of the mill was southeast of that building about ⁹⁰ a quarter of a mile distant. There were trees at the front and back of the mill, sixty or ninety feet away, and the trees and mill were the same height. The telephone line extended north and south with the road. The pole from which the telephone service in the office at the mill was connected stood about twenty-five feet west of the mill, and the line was carried from the top of this pole downward to the west side of the mill.

Here the wire entered the building through a porcelain tube over the window, about sixteen feet above the ground, and was carried inside to a standard lightning arrester. The inside wire was brought from the outer side of the arrester and connected with the telephone instrument, which was fastened to the wall'. It was that type which has a small wooden box to hold the interior equipment, with the receiver hanging from a hook on the left, and a crank on the right to turn to ring the operator. A part of the equipment was a ground wire which ran from the bottom of the lightning arrester out to the exterior of the west side of the mill and down the outside of the mill, to which it was fastened by nailed cleats, and thence along the foundation wall into the ground, where it was united to a ground steel peg or rod.

No suggestion is made of any defect or default in the instrument and equipment or in their installation. The telephone service was put there in 1929 or 1930, and there is no testimony of deterioration of the apparatus or equipment, or of lack of care in the operation and maintenance, until March or April, 1936. At this time, the plaintiff testified, they had noticed that the ground wire was broken from twelve to sixteen inches, according to varying witnesses, from the surface of the ground, and the upper part of the wire swung loose because the cleats had come loose, and the operator at the local telephone exchange had been notified of this condition. At the time of the fire the distance between the ends.of the severed wire was something like two or three inches.

There was nothing else in the mill which was electrically operated. ⁹¹ The fire occurred on June 3rd, 1936, between five and six o’clock in the afternoon. The plaintiff had been operating the mill by his gasoline motor, and had stopped between four and half past four in the afternoon. He then went to see a neighbor a half mile away. He remained there a short time and left for his home in his automobile.

About half the distance between his home and the mill, he saw smoke coming up from the northwest corner of the mill. He had difficulty in estimating the time between when he left the mill and when he saw the smoke of the fire, and finally put it as something like five or ten minutes. He went at once to the mill, and could save nothing. The mill and its contents where wholly consumed.

The principal and decisive question is the right of recovery on the whole testimony. Where there is no contributory negligence, a telephone company is liable for injuries which are proximately caused to property by the negligent or improper manner of constructing and maintaining its lines and equipment in its control on the premises of a subscriber to its tele-, phone service. As the telephone company is not an insurer against injury, it is not liable when it is not negligent; and, again, if negligent, the telephone company is not liable unless its negligence and the injury suffered are in casual relation. Should there be, however, a combination of two causes to produce an injury, and both are in their nature proximate, and the one cause be an act or something for which neither the company nor the person injured nor a known third party is responsible in tort for its happening, and the other cause be a negligent act or something sounding in tort for which the company is responsible, the telephone company is liable, if the' injury would not have been sustained if it were not for such default on its part.

Restatement of Torts, vol. 2, sec. 432, subsecs. 2, d-6 pp. 1161-1164. Thus the destruction of the mill by ignition caused by a stroke of lightning is a proximate cause of the injury suffered by the plaintiff who, as a general rule, may not recover for an injury inflicted by what is known in law as an act of God. ⁹² Nevertheless, should it be established by the plaintiff that the fire would not have been produced by the stroke of lightning had there not simultaneously existed a condition at the mill which was the result of the telephone company’s negligence and which, in combination with the stroke of lightning, was the proximate cause of the fire which consumed the mill and its contents, the plaintiff would be entitled to recover against the telephone company for its neglect. Griffith v. New England Telephone Co., 72 Vt. 441, 444 , 48 A. 643 ; Boomer v. Southern California Edison Co., 1928, 91 Cal. App. 375 , 267 P. 178 ; Stecher v. Southwestern Bell Tel.

Co., 1931, 132 Kan. 362 , 295 P. 709 ; Wood v. Cumberland Tel. & Tel. Co., 1912, 151 Ky. 77 , 151 S. W. 29 ; Alling v. Bell Tel. Co., 1923, 156 Minn. 60 , 194 N. W. 313 ; Epperson v. Postal Tel. Cable Co., 1899, 155 Mo. 346 , 50 S. W. 795 , 55 S. W. 1050 ; Rocap v. Bell Tel.

Co., 1911, 230 Pa. 597 , 79 A. 769 ; Sinkovich v. Bell Tel. Co., 1926, 286 Pa. 427, 133 , A. 629; Western Tel. Corporation v. McCann, 1937, 128 Tex. 582 , 99 S. W. 2d 895 ; Alabama Power Co. v. Farr, 214 Ala. 530 , 108 So. 373 ; Southwestern Bell Telephone Co. v. McAdoo, 178 Ark. 111 , 10 S. W. 2d 503 ; Southwestern Tel. & Tel. Co. v. Abeles, 94 Ark. 254 , 126 S. W. 724 ; Pearce v. Mountain States Tel. & Tel.

Co., 65 Colo. 91 , 173 P. 871 ; St. George Pulp & Paper Co. v. Southern New England Telephone Co., 91 Conn. 563 , 100 A. 358 ; Peninsular Telephone Co. v. McCaskill, 64 Fla. 420 , 60 So. 338 ; Columbus Railroad Co. v. Kitchens, 142 Ga. 677 , 83 S. E. 529 ; Georgia Power Co. v. Stonecypher, 1933, 47 Ga. App. 386 , 170 S. E. 530 ; Wells v. Northeastern Telephone Co., 101 Me. 371 , 64 A. 648 ; Warren v. Missouri & Kansas Telephone Co., 196 Mo. App. 549 , 196 S. W. 1030 ; Lynch v. Carolina Tel. & Tel. Co., 1933, 204 N. C. 252 , 167 S. E. 847 ; Evans v. Eastern Ky.

Tel. & Tel. Co., 124 Ky. 620 , 99 S. W. 936 ; Texas Tel. & Tel. Co. v. Scott, 60 Tex. Civ.

App. 39 , 127 S. W. 587 ; Southern Tel. & Tel. Co. v. Evans, 54 Tex. Civ. App. 63 , 116 S. W. 418 ; Southwestern Tel. & Tel.

Co. v. Davis, Tex. Civ. App., 156 S. W. 1146 . ⁹³ The principles stated are subject to the qualification that the plaintiff must prove affirmatively the negligence alleged, and that it caused the injury, and that this burden is not met by testimony which tends to show that the negligence of the defendant may have caused, or even that it probably did cause, the injury, if it should further appear that the injury may have been produced by some other cause, for which the defendant was not responsible. Moore v. American Stores Co., 169 Md. 541, 549, 550 , 182 A. 436 ; Shafer v. State, 171 Md. 506, 509 , 189 A. 273 ; Realty etc. Co. v. Ulrich, 164 Md. 666, 670 , 165 A. 708 .

Since the only negligence attributable to the defendant on this record is its failure, after notice, to repair, within a reasonable time, the broken ground wire, it is essential to the plaintiff’s rights of recovery to show that this parted wire was the causal connection between the atmospheric discharge of lightning, which was observed by his sister, and the fire which destroyed the mill and its contents. In other words, the defendant was not responsible, and, therefore, not liable for the atmospheric electricity or lightning. Hence, even if the lightning caused the fire, the defendant had no responsibility, unless the lightning was carried by induction over the telephone wire into the mill, and started the fire because of the broken ground wire. No one saw the flash nor testified to it, except the sister.

Although a few feet away from the mill, she was neither stunned nor affected by the discharge. Her face was turned from the mill and she did not see the bolt strike. She was blinded by the flash and startled by the “terrible crash.” The testimony is that there was not the slightest damage to the telephone line, nor was a single telephone service on the party line affected by electricity on the wires. Under these unusual circumstances, it is contended that the lightning did not pass directly from the atmosphere to the mill, but that its current was received by the telephone wire and flowed by induction along the telephone wire into the mill to the telephone box, which it ⁹⁴ set on fire.

The prayers on the part of the defendant raise the question whether the testimony is legally sufficient for the jury to find the facts which are indispensable .to the support of this contention. The solution of the problem is primarily dependent upon what is the testimony, and this inquiry compels a careful review and co-ordination of the facts in evidence. Lightning and its effects of fire and violent destruction are familiar phenomena of nature. The testimony here tends to show that, immediately preceding the fire, there was a thunder storm and a blinding flash and crash, which were quickly followed by fire.

From this it may be found that the ignition was caused by a direct stroke of lightning, since fire is a natural result of a frame mill being hit by lightning. The testimony on the record is consistent with a fire caused by the immediate impact of the thunderbolt with that portion of the mill where the fire first appeared. No one saw the stroke, and what actually happened must be established by circumstantial evidence. The plaintiff rejects the inference that the origin of the fire was a direct impact of lightning from the atmosphere upon the building.

The theory upon