
    Wilson B. Sheldon, Resp’t, v. Western Union Telegraph Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Negligence — Obstruction of highways — When subject to public user.
    The defendant operated a line of telegraph wires along a public road. At one point in the road where there was an angle, to keep its telegraph pole which stood there in an upright position, it sank a stone close to the traveled part of the highway ana fastened a wire to it and carried the wire to the telegraph pole above ground. The wire was not easily seen under favorable circumstances and a traveler’s view was obstructed by the trees. The plaintiff while driving a team of horses along the road in attempting to turn out to let another wagon pass became caught by the wire and sustained injuries. Meld, that the defendant’s right to use the road is subject to the public user, and that the jury were justified in finding defendant guilty of negligence.
    
      %. Same—Contributory—When not.
    The failure of the plaintiff to see the wire was not negligence.
    3. Refusal to charge—When not error.
    Where the charge as to the general question of negligence is plain and accurate, a refusal to charge propositions which have no evidence to support them, or were addressed to the effect which certain findings upon particular facts would have upon the general question of negligence, is not error.
    Appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial on the minutes at the Dutchess county circuit.
    
      
      Herbert E. Dickson, for app’lt; William B. Woodin, for resp’t.
   Barnard, P. J.

—There is some conflict in the testimony upon minor points, but upon the whole, it is clearly proven that the defendant operated lines of telegraph wire along the road in question. That it maintained a telegraph pole at a point where there was an angle in the road, so that the tendency was that the pole- would fall away from the road. This pole_ was quite close to the fence. To prevent the pole from falling away from an upright position, the defendant sank a stone close to the traveled part of the highway, and fastened ,a wire to it, and carried the wire to the telegraph pole above ground and attached it to the pole; by means of this anchor and wire the pole was held firm. There were two apple trees on the same side of the road as the anchor stone, which, when in leaf, prevented the wire being seen by persons using the highway. There was a bank on the opposite side of the road, which forced the travel close to the sunken stone.

The accident happened in August, 1886, and about six o’clock in the afternoon. The plaintiff was driving a team of horses along the road. A man with a wagon was ahead of him, and this man pulled his horses towards the bank to let plaintiff go by. The plaintiff turned out far enough to escape the wagon, and in doing this the wire caught the carriage of plaintiff between the box and the wheel, and caused great injury to the plaintiff. He was pulled out of the wagon by the horses which were freed from the carriage by the force of the collision with the wire. • The question is a peculiar one in this, that both parties had a right to use the road. The plaintiff, because it was a public highway, and the defendant, because of legislative permission to use the highway. The first question is, which right is paramount. Highways are well established' and defined in law. The right to use them as they have been accustomed to be used from time immemorial cannot be questioned. The right of the defendant is subject to the public user.

• The defendant may not use the road so as to obstruct or render dangerous the public travel. If this correctly states the rights of the parties, a case of injury by negligence of defendant,- is clearly made- out. The wire between the stone and the pole was not easily seen under favorable circumstances. The wire was so close to the road that it was a dangerous snare to travelers, and besides this the road was so narrow by reason of the bank, and the traveler’s view was so obstructed by the trees, that the jury were justified in finding the defendant guilty of negligence.

The evidence fails even to make a debatable question in respect to the plaintiff’s negligence. He did not see the wire because he could not for the trees and the invisible nature of a small wire between the stone and the pole.

He turned out no further than was prudent to pass. The persons in each vehicle so testify and the anchor was so close to the traveled part of the highway as to cause a collision under these circumstances. There are several exceptions to the refusal to charge specific requests. The general charge is faultless and the requests were all either addressed to propositions which had no evidence to support them or were addressed to the effect which certain findings upon particular facts would have upon the general question of negligence and contributory negligence which was submitted to them upon the general evidence in the case. The refusals to charge on such propositions were not erroneous where the charge as to the general question of negligence was plain and accurate.

The damages found by the jury were moderate and fully justified by the evidence.

The judgment should, therefore, be affirmed, with costs.

All concur.  