
    Sheldon v. Western Union Tel. Co.
    (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Highways—Obstruction by Telegraph Company—Public Easement.
    Defendant, a telegraph company authorized by legislature to use a highway in the operation of its lines, sank a stone near the traveled part thereof, to which it attached a wire, which was fastened above ground to a telegraph pole near the fence, for the purpose of holding the pole upright. The road was narrow, the wire was not easily seen, the view of it was obstructed by the foliage of trees, and a bank on the opposite side of the road forced the travel near the sunken stone. SeM, that defendant’s right to use the road was subject to the public user, and that in an action for injuries sustained by a traveler by the wire catching on his vehicle the jury were justified in finding defendant guilty of negligence.
    3. Same—Contributory Negligence.
    Plaintiff, having turned out of the road to pass another traveler only so far as was necessary to pass, was not negligent in failing to see the wire.
    8. Trial—Refusal to Charge—Questions not Supported by Evidence.
    Where the charge on the general question of negligence is plain and accurate, it is not error to refuse to charge specifically on propositions not supported by evidence, or on the effect which certain findings would have on the general question of negligence.
    Appeal from circuit court, Dutchess county.
    
      Action by Wilson B. Sheldon against the Western Union Telegraph Company for injuries received upon a public highway. Judgment for plaintiff, defendant’s motion for a new trial on the judge’s-minutes denied, and it appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Herbert E. Dickson, for appellant. William B. Woodin, for respondent.
   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 6 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 extracted 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 ease 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 refusal to charge on such propositions was 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.  