Ela v. Postal Telegraph Cable Co. , 71 N.H. 1 ( 1901 )

The evidence tended to prove that the defendants were guilty of negligence in stringing wires on the inside of poles placed on the outside of the curve in the highway at the place of the accident, and in using improper brackets to support the wires and not providing guards to catch them if detached. In consequence of this faulty construction, the wires, if for any cause detached, would naturally fall into the highway and endanger the safety of travelers therein. The negligence would not end with the construction of the line, but would continue so long as the wires were allowed to remain strung in that manner. It was liable to produce evil results at any moment. If the plaintiff's injury was due solely or proximately to such negligence, or if it was caused by such negligence combined with a wrongful act of Lynch, the defendants are liable.

As the case was presented to the jury, much stress was placed upon Lynch's act in felling the tree. They were required to find specially whether this act was the cause of the presence of the wires in the highway, and were instructed that if they found it was, their general verdict should be for the defendants. They were told that "if but for the felling of the tree the wires would have remained in position, the law regards the acts of Lynch as the cause of the trouble"; and that "due care did not require that the defendants should anticipate and provide against the cutting and felling of trees by Lynch." It seems to have been taken for granted that the question of proximate cause is a question of law. This assumption was erroneous.

In this state it is well settled that the question of remote and proximate cause is a question of fact to be determined by the jury. Gilman v. Noyes, 57 N.H. 627; Boothby v. Railway, 66 N.H. 342; Searle v. Parke,68 N.H. 311, 312; Deschenes v. Railroad, 69 N.H. 285, 289; McGill v. Granite Co., 70 N.H. 125, 129. There was sufficient competent evidence bearing on the question to warrant its submission to the jury in this case. Besides the evidence of the faulty construction of the line of wires, and its natural tendency to cause injury to travelers upon the highway, it appeared that the poles and wires were located near trees of the woodland through which the highway passed, and that the trees were of suitable size to be manufactured into wood and lumber. The presence of such trees so near the wires evidently increased the chances of their dislodgment. The trees might be forced against the wires by winds or other natural causes; or if cut, might fall against them. The defendants were chargeable with an apprehension of all contingencies in respect to a displacement of the wires which persons of average prudence would foresee under the circumstances. If they reasonably ought to have foreseen that the trees near the wires would probably be cut down, and in being cut might fall against and dislodge the wires, although felled with reasonable care, it was the defendants' duty to construct and maintain the line in a form that would avoid injury to travelers in case the wires were dislodged in that manner. So, in determining whether the presence of the wires in the highway was due to negligence on the part of the defendants, although Lynch's act was the immediate cause of their displacement, it is necessary to determine whether the defendants reasonably ought to have anticipated that an intervening act of that character might transpire. The latter question is involved in the question of negligence, and the whole is a question of fact to be determined by the jury. Searle v. Parke, 68 N.H. 311, 312.

The fact that Lynch's act caused the wires to be in the highway falls far short of exonerating the defendants from liability, under the circumstances of the case. Cowles v. Kidder, 24 N.H. 364, 383; Hooksett v. Company,44 N.H. 105. If he had felled the tree against the wires with the intention of forcing them into the highway, his act might be the proximate cause of the plaintiff's injury. The faulty construction of the line would facilitate the execution of his wrongful purpose, but it could not reasonably be said to be the cause of the wires being in the highway. The defendants would have no reason to expect such an act would be done, and consequently would owe no duty to a traveler in respect to it. But the evidence in this case, instead of showing an act of that character, tended to show that Lynch, while engaged in a lawful act, exercised due care to prevent the tree from falling against the wires. To exonerate the defendants from liability in view of this evidence, it was necessary that the jury should find, in addition to the special finding, that the defendants reasonably ought not to have foreseen an act of this general character. This matter was not presented to the jury in connection with the special question submitted to them, and was expressly withdrawn from their consideration by the limitation that "due care did not require that the defendants should anticipate and provide against the cutting and felling of trees by Lynch."