Earp v. Phelps

Urner, J., delivered the opinion of the Court. This appeal is from a judgment recovered against the appellants for injuries received by the appellee in colliding with a telegraph pole while he was riding on the lazy hoard of a wagon on a public highway. The sufficiency of the declaration was considered and sustained on a former appeal, Phelps v. Howard Co., 117 Md. 175 . Upon the remanding of the case a general issue plea was filed, and a trial ensued' in the course of which a number of exceptions were reserved, including the question as to whether the evidence offered was legally sufficient to support the issue joined.

The contrary theory has been ably presented by counsel for the appellants, and to this important inquiry we will first direct our attention. The former opinion, in referring to the averment that the road was unsafe by reason of the danger of collision to which persons using it were exposed on account of the presence of a telegraph pole in close proximity to the travelled way, pro-, ceeded to say: “The issue thus presented is essentially one of fact, and as such it must be determined upon a consideration of the evidence, when adduced, showing the dimensions, conformation and established use of the highway.” The proof as to these features of the case tends to show that at the time ²⁸⁶ of the accident the portion of the road reservation prepared for travel was about twenty-two and a half feet wide, this being the distance between the telegraph pole in question and a locust tree on the opposite side of the road; that the intervening space was level, except for a downward slope of about six inches from the middle portion of the road towards the pole on one side and the tree on the other; and that the whole of this space was used for travel. The- road supervisor testified that the surface was worked and graded as far to the sides as the pole and the tree would permit, that the plow of the road machine sometimes ran against the pole in the course of this work, that “you could drive right up to the pole” and that people traveled “along there;” that the plaintiff stated in his testimony that the road “was used all the way from the tree to the telegraph pole.” The conditions at the place of the collision having been thus indicted the accident will now be described in the plaintiff’s own language. He testified: “I was coming home from taking a load of bailed straw away and it was dark and there was another team coming up this road and our horses walking a little faster than his, and they kind of swerved off to keep from walking right into the back of this wagon and they walked on the side a little way and there was a postal company pole out in the edge of the roadway and I was sitting on the lazy board and came in contact with this pole.

I didn’t see it. It was dark and it caught me on the limb below the knee between this board and the pole and rendered me unconscious.” The lazy board of a wagon, as shown by the testimony, is adjusted in front of the rear wheel on the left, and when drawn out to its full length extends about two and a half feet beyond the hub. It furnishes a seat for the man who applies the brakes. The plaintiff was performing this duty on the night of the accident and had resumed his seat a few minutes before the collision after having operated the brake bar at the end of the wagon in descending a hill.

The proof ²⁸⁷ admits of a finding that the plaintiff was brought into contact with the pole while the wagon was in the travelled part of the way and while the plaintiff was riding in a proper and customary manner. In the decision of such a question as the one now under consideration the fundamental rule to be kept in mind is that the use of a public road for the maintainance of telegraph poles and similar structures is subordinate to the purposes of public travel for which the road is primarily intended. The statute authorizing corporations to construct their lines along and upon the highways and across the bridges and waters of the State, by the erection of the necessary fixtures, provides that they “shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges, or injuriously interrupt the navigation of said waters, or interfere with the convenience of any land owner more than is unavoidable. Code 1904, Article 23, section 324; Annotated Code 1912, Article 23, section 359.

The former opinion assumed that the defendant telegraph company was entitled to the benefit of the privilege thus conferred; and in any event it certainly could not claim a more advantageous position than the Act would afford. In disposing of the demurrer, and of the contention that in view of the statute referred to the defendant company was in the exercise of a lawful right in locating the pole on the roadway, and that so long as it was not placed within the limits of the travelled or prepared way and did not narrow or restrict the space thus defined, it could not be said to incommode the public use, we adopted the principle applied in Little v. Cen., etc., Tel. Co., 213 Pa. St. 229 ( 62 Atl. 848 ), in the interpretation of a similar act, and held that if a pole is erected so near the beaten track as to endanger the safety of travellers, it must be regarded as incommoding the public in the use of the road. ²⁸⁸ The appellant’s brief contains a suggestion that the prohibition of the Act was merely that the public use of the roads shall not be injuriously incommoded more than is unavoidable.

We do not so construe the meaning of the statute. The term “unavoidable” is plainly intended to qualify only the restriction upon interference with the convenience of land owners, and has no relation to the provision against incommoding the public use, to which the adverb “injuriously” is applied. The question, therefore, we have now to decide is whether the evidence in the case admits of a legitimate inference that the pole in question was so placed in the highway as to injuriously incommode its use for the purposes of public travel or constitute “a source of danger by reason of its close proximity to the travelled portion of the road.” 117 Md. 178 . In Little v. Cen., etc., Tel.

Co., supra, the evidence was held to be legally sufficient to show, that a pole with which a young woman collided, while riding on the side of a hay wagon, was located on the travelled portion of a road or in such close proximity to it as to endanger the safety of persons using the highway. The evidence in that case showed that the plaintiff at the time of the accident, which occurred at night, was seated on the “side of the hay wagon with her feet extended out over the bow of the hay rack which was over the rear wheel,” and the wagon “slightly grazed the pole in passing,” with the result that the plaintiff was knocked off and injured. The conditions thus disclosed are very closely analagous to those appearing upon this record. In this case the pole stood in immediate proximity to the part of the road which the proof tends to show was prepared and used for public travel.

As-thus located it was an object against which a vehicle on the travelled way could readily strike in passing. The road space available for travel was considerably less than the usual legal width of thirty feet, and it can not be said to have been so wide as to make the danger ²⁸⁹ of collision with the pole too remote and improbable to be reasonably anticipated by those who were responsible for its location. In view of these circumstances we are not justified in declaring as a matter of law that the pole could be erected and maintained at the place indicated in the evidence without liability on the part of the defendants for the injury it occasioned to one using road in a lawful and customary way. While, -as we have said, an issue like the present is essentially one of fact, it should, of course, not be made the subject of mere conjectural or capricious judgment and should not be submitted to the jury in the absence of proof legitimately tending to support the theory upon which recovery is sought; but in the case now under consideration we do not think it can be properly held that the evidence is legally insufficient for that purpose.

The cases cited by the appellants in this connection deal with objects placed on the lines of divisions between streets and sidewalks in towns and cities, and the principles appropriate to such conditions do not effect the question as to whether, under the very different circumstances here shown, the jury should have been permitted to pass upon the issue of fact presented by the pleadings. By separate prayers it was proposed that a verdict be directed for each of the two defendants. It was not urged in argument, however, that either should be exempted independently of the other, and as both were responsible for the maintainance of the condition to which the suit relates, we must hold, in accordance with the view already stated, that the proposed instructions were properly refused. The question upon which we have passed was raised by the first and second prayers filed by each of the defendants.

Their third prayer sought to have the jury instructed that upon the undisputed evidence the plaintiff did not exercise reasonable care to avoid coming in contact with the pole, but by his own want of care and prudence contributed directly to the injury of which he complains, and that the verdict ²⁹⁰ should, therefore, be for the defendants. Upon this point the plaintiff testified that he was familiar with the road and the location of the pole, but that on the occasion of the accident he could not see the pole by reason of the darkness, although he was