
    Mary E. Fitch, Respondent, v. The Central New York Telephone and Telegraph Company, Appellant.
    
      Negligence — traveler upon a highway injured by a detached telephone wire coming in contact with his carriage —• duty of the telephone company where a wire is detached, from its pole by a falling tree.-
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, a telephone company, it appeared that a falling tree, uprooted during ^ a severe wind storm, dragged one of the defendant’s wires, which extended across a public highway, from the pole to which it was fastened, and held it at such a height above the highway that it was not dangerous to passersby; that on the next morning an employee of the overseer of highways attached the wire to another tree, leaving it suspended about ten feet above the highway ; that on the morning of the third day thereafter there was considerable wind, and that the wire, having from some unexplained cause become dislodged from the tree to which it was attached, came in contact with the top of a carriage in which the plaintiff was riding, which resulted in the carriage being overturned and the plaintiff being injured. It also appeared that the wire in question at no time touched the ground so as to break the circuit and apprise the defendant of its condition, and that the defendant was not aware fo such condition until at or about the time of the happening of the accident.
    
      
      Held, that as the defendant could not reasonably have anticipated the happening of the accident in question, it was under no obligation to adopt a system of supervision to guard against it;
    That, under the circumstances, the defendant was not chargeable with negligence.
    Merwin, J., dissented.
    Appeal by the defendant, The Central New York Telephone and Telegraph Company, from a-judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 4th day of March, 1898, upon the verdict of a jury for $600, and .also from so much of an order entered in said clerk’s office on the 19th day of March, 1898, as denied the defendant’s'motion for a new trial made upon the minutes.
    The lines of the defendant run; through the villages of Oxford and Norwich, which villages are about- eight miles apart. About midway between such villages the line of the defendant crosses the highway. >
    On the night of the 27th of July, 1896, there was a severe wind storm which uprooted an "apple tre0 standing near one of the poles which supported the wire of the defendant, and in its fall the.tree caught the telephone wire and dragged it from the pole; the wire became caught in the uppermost branches of the tree, which held it up at such a height above the roadway that it was not dangerous to passersby. ■ The following morning an employee of the overseer of highways cut up and removed the fallen tree, detached the wire therefrom and attached it to another tree, so that it was about ten feet above the highway. :
    On the morning of the thirty-first of July there appears to have been considerable wind, and the wire from that or some other cause appears to have become dislodged or loosened from the tree to which it had been attached, so that a top carriage in which the plaintiff was being driven was caught by the wire; about three inches from the top, and as a result the carriage was overturned and the plaintiff injured.
    The accident occurred between Inine and ten o’clock in the morning of the thirty-first of July.
    It appears that the officers or agents of the company did not know of any "trouble with the wire until between nine and ten o’clock in the morning of the day ¡the accident occurred when it was promptly repaired.
    
      It appears from the evidence that if the telephone wire had touched the ground at any place the circuit would have been interrupted, communication would have been at once cut off from tlie•offices of the company, and they would at once know that there was some trouble with their wires.
    It also appeared from the evidence that, when the wire was thrown down by the tree, it was held up above the ground by the branches of the tree, and subsequently by being attached to another standing tree, so that it apparently at no time touched the ground so as to cut off the current and thus apprise the company of its being out of order,
    
      Albert F. Gladding, for the appellant.
    
      John W. Ghv/roh, for the respondent.
   Herrick, J.

Under, section 102 of chapter 566 of the Laws of 1890 the defendant had a right to have its lines of wire upon, over' or under the highway, and, therefore, cannot be treated as a trespasser.

The falling of the wire did not happen because of faulty construction, or any inherent weakness in its poles, or in the attachment of the wire thereto, which rendered it unable to resist a wind storm, but it was carried down by a tree which was uprooted and fell upon it. The defendant did not in fact know of the injury to its lines until the morning of, and about'the time of, the happening of the accident to the plaintiff; it then jiromptly proceeded to repair it. The only claim of negligence that can be made against the defendant, it seems to me, is in not discovering and repairing the injury to its line between the time of the happening of that injury and the time the accident happened. Is that claim well founded %

It is evident that, under ordinary circumstance, when the wires are torn from the poles, notice will be given of that fact by their dropping to the ground and causing an immediate interruption of the current, and the consequent cutting off of communication over the wire, thus immediately giving notice to the company. Here, from the peculiar and unusual nature of the accident, the wire after being torn from its pole was not only held from the ground so as to prevent the current from being cut off, but it was held at such a distance above -the highway as not to interfere with the traffic over it, and consequently ho notice was: received in the ordinary way by the defendant; and when it was removed from the fallen tree and attached to another, it was still in sucli a position that the current was not interrupted, nor did the wire itself interrupt or' interfere with passersby on the highway.

The peculiar character of this accident to the wire of the defendant, and its attendant circumstances, are of such a nature as not to-have been reasonably anticipated by the defendant, and, therefore, it was not called upon in the exercise of reasonable diligence to guard against them:

While the defendant might reasonably anticipate that it's wires might become broken or dislodged, it also could reasonably anticipate that it would have prompt and immediate notice of that fact by the interruption of the communication; it could not reasonably anticipate the uprooting of trees, and their falling upon their wires, and yet holding them up from the ground in such a manner as not only to prevent the breaking of the current, but also not to interfere with the passersby, and thus prevent notice being given ; nor could it reasonably apprehend the happening of accidents of like character, and, therefore, it was under no obligation to adopt a system of supervision and inspection to guard against such unanticipated and unforseen dangers.

It is one of those accidents that probably could not be guarded, against, except by a constant patrol: or inspection of the lines, and it seems to me that telephone and telegraph companies are under no-greater obligations in that respect than are overseers or commissioners of highways, and as to them, it has been held that they are under-no obligation to keep the roads in their towns under constant personal supervision. (Lane v. Town of Hancock, 142 N. Y. 510.)

I cannot find from the evidence that the defendant is chargeable-with negligence, and the judgment and order should, therefore, be-reversed, and a new trial ordered, hosts to abide the event.

All concurred, except Mebwin, J,, dissenting, and Pütítam, J., not-sitting.

Judgment and order reversed and a new trial granted, costs to abide the event.  