
    Jeremiah Quill, Plaintiff, v. The Empire State Telephone Co., Defendant.
    (Supreme Court —Cayuga Circuit,
    June, 1895.)
    The mere fact that a similar accident never "before happened does not necessarily repel the charge of negligence; the test being whether such accident is one which might reasonably have been anticipated, or one the occurrence of which would, in the minds of reasonable men, be in the highest degree unlikely.
    A telegraph company which owns and is in practical possession of a telegraph pole, although it allows another company to use one of its arms, is charged with the duty of keeping it in such a condition of safety that travelers upon the highway shall be exposed to no unnecessary hazard therefrom, and is responsible for any negligent condition of its appurtenances which it Dermits_to-exist bv passive acquiescence following actual knowledge or resulting from failure to acquire knowledge.
    Where, several proximate causes contribute to an accident, either of which is an efficient cause without which the accident could not have happened, it may be attributed to any or all of them.
    Motion by the defendant upon the minutes of the court for a new trial.
    
      This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant, which is a duly organized corporation, owning and using the necessary poles, wires and other appliances for the proper operation of its business of transmitting telephonic communications, with lines extending through some seven counties of this state, including the county of Cayuga.
    At the junction of Genesee and Exchange streets in the city of Auburn it has caused to be erected a pole, ninety feet in length, upon which it has placed about twenty crossarms which extend downwards from the top of the pole, and into these crossarms wooden pegs have been inserted at convenient intervals, to which are attached glass insulators for the purpose of enabling the defendant to string and insulate its wires.
    These insulators are hollow cylinders, and upon the inner surface thereof is a thread which corresponds with another thread cut upon .the wooden peg, so that when properly adjusted it is firmly attached to the peg and cannot be detached from the crossarms, unless either the peg or insulator is broken.
    At the time of the injury to the plaintiff 'the top crossarm was used by the American Telephone Company; the next two or three were not in use at all, but the next thirteen were used by the defendant, while the lowest one of all, by an arrangement existing between the defendant and the Western Union Telegraph Company, was used by the latter corporation for the purpose of stringing thereon some of its wires.
    It appears that a wire belonging to the fire-alarm system of the city of Auburn had, in some manner, come into contact with, or was crossed by, one of the wires passing over this pole, and it became necessary to disconnect the same. To accomplish this a lineman in the employ of the city ascended the pole on the 27th day of June, 1891, and in attempting to raise a wire it caught under an insulator, threw it off from the peg upon which it rested and in falling to the ground it struck the plaintiff, who was standing upon the sidewalk in close proximity to the pole, upon the left shoulder with such force as to produce an injury of so serious a character that the arm was thereby rendered practically useless, and has remained so ever since.
    The insulator which fell was the third one from the inside upon the lowest crossarm, the one used by the Western Union Telegraph Company. It was produced and identified upon the trial and appeared to be smaller in size than those used generally by that company, but of the same size and style as those used by the defendant.
    The evidence tended to show that it was simply placed upon the peg from which it fell without having been screwed on, or in any other manner firmly attached.
    There was also evidence that at the time of the accident there were other insulators of the same size -upon the cross-arm in question to which no wires were attached, and that the telegraph company did occasionally make use of this style of insulator.
    The case was submitted to the jury and a verdict of $4,000 in favor of the plaintiff resulted.
    
      Underwood, Storke eft Seward, for motion.
    
      Rich <ft Aiken, opposed.
   Adams, J.

The only questions argued upon this motion were those which involve the ^plaintiff’s right to maintain his' action against this defendant, the contention being that the evidence fails to establish any negligence upon the part of any one to which can be justly attributed the injury of which the plaintiff complains, but that, if any is proven, it is negligence upon the part of the Western Union Telegraph Company, or an employee of the city of Auburn, and not upon the part of the defendant.

It will be well, therefore, to consider these several propositions in the order in which they are stated, and .at the outset it may be conceded, as was suggested in the charge to the jury, that the circumstances attending the plaintiff’s injury were somewhat extraordinary in their nature; that the insulator which caused the injury should have been lifted from its resting place at the precise moment of time when the plaintiff was standing in a position where he could be struck as it fell is a circumstance certainly peculiar to this case, and because it is exceptional it is argued that the defendant was under no obligation to guard against a contingency which there was so little reason to anticipate.

It is unquestionably the rule, and a very just one, that no person can be charged with a negligent omission of duty for a failure to anticipate and guard against some contingency which would not have arisen save under circumstances which are exceptional. Hubbell v. City of Yonkers, 104 N. Y. 434. The mere fact, however, that a similar accident never before happened does not necessarily repel the charge of negligence (Cleveland v. A. J. S. Co., 125 N. Y. 299), the true test being, as stated in the last case cited, whether it is one which might reasonably have been anticipated, or one, the occurrence of which would, in the minds of reasonable men, be in the highest degree unlikely.”

Measured by this standard, it is obvious, I think, that the case presented questions of fact which the plaintiff was entitled to have a jury pass upon, for although it may be claimed with great propriety that there was no good reason for anticipating an accident in all its details like the one in question, yet the possibility of a personal injury occurring by reason of the failure to properly adjust a glass insulator, of no inconsiderable size and weight, to its proper place upon a telephone pole can hardly be said to be so remote as to justify the claim that “ in the highest degree it is unlikely to happen.” Here was a pole ninety feet in height with twenty crossbars or arms attached to it, and upon these arms were pegs for possibly 200 insulators, and over them were stretched a vast number óf wires. This structure was located at the junction of two thoroughfares in a flourishing city, and by and around it hundreds of people were passing daily. The evidence discloses the fact that it frequently became necessary ' for the employees of the different companies using the pole to ascend it for the purpose of readjusting 1¡lie wires, and, the better to accomplish this, a bridge had been constructed from an adjoining building which rendered the pole and wires easy of access. Now, if this glass insulator was simply placed upon its peg and tipped over upon one side, without being screwed on, as described by one of the plaintiff’s witnesses, is it after all remarkable that in the frequent changing of the wires, or in the adjustment of new ones, it should be jerked off and made to fall upon some person passing along the street below % Or is it inconceivable that even the swaying of the wires by a brisk wind might have produced the same result ? In making these suggestions I am not unmindful of the attempted demonstration upon the part of the defendant of the utter impossibility of displacing an insulator from one of these wooden pegs, even when it is not firmly attached by means of a screw, but the evidence of the witness Hurlburt cannot be ignored, and, if it could be, the fact remains that the insulator was in some manner displaced and thrown to the ground, and this, in the absence of any explanatory circumstance, would seem to establish a jprima facie case of negligence upon the part of some one. Mullen v. St. John, 57 N. Y. 567; Crozier v. Read, 78 Hun, 181; Morris v. The S. & W. Co., 81 id. 1.

The claim that the fault, if any, was that of Hurlburt, and not of this defendant, was submitted to the jury, and they were instructed that, if the insulator, having been properly attached, was displaced simply because of the force which was employed by him in raising the wire of the fire-alarm telegraph, the plaintiff could under no possible circumstances recover. The issue thus raised having been submitted to the jury, their verdict must be regarded as conclusive upon the subject, and, therefore, it may be assumed that the insulator was placed upon the wooden peg in a careless and negligent manner, and so we have fairly presented for consideration the question as to the party who is responsible therefor.

The defendant sought to escape responsibility for the accident by claiming that the crossarm from which the insulator dropped was used exclusively by the Western Union Telegraph Company, and that, therefore, that company, and not the defendant, should be charged with the consequences of the negligent act. It is true that the company did use this crossarm so far as it was used at all; nevertheless the evidence was such as would have warranted the jury in concluding that the insulator was placed in position by the defendant, for the telegraph company certainly had no wire attached to it, although it appears that one ran along by the side o'f it, and, as has been stated, it was of the same size and kind as the insulators used by the defendant.

But assuming that the telegraph company did cause the insulator to be placed upon the peg in the manner described by the plaintiffs witnesses, yet I fail to see how this relieves the defendant from all share of responsibility for the result which followed.

It is expressly admitted by the answer that the pole in question was erected and maintained by the defendant, and if it saw fit to permit some other person or corporation to use a single crossarm as a matter of convenience, it nevertheless appeared, and was not disputed, that the defendant remained in virtual possession of the entire structure and exercised a supervisory power over it, for its employees were constantly climbing the pole to readjust wires, and its superintendent testified that it was his business to inspect it, and that he knew what its condition was at the time of the accident.

It matters little, therefore, what was the precise relation existing between the defendant and the telegraph company, for if it was that of lessor and lessee, the pole being jiractically in the possession, and certainly under the control, of the former, it became charged with the ’ duty of keeping it in such a condition of safety that travelers upon the highway should be exposed to no unnecessary hazard therefrom (Khron v. Brock, 144 Mass. 516; Gray v. Boston Gas Light Co., 114 id. 149; Milford v. Holbrook, 9 Allen, 17), and there is no reason why the same rule should not apply where the partial occupation is that of a mere licensee. In either case, so far as the present action is concerned, the negligence complained of may be predicated of the dangerous condition of the insulator, or the failure to discover its condition by the omission of proper inspection.

In other words, the defendant, owning, maintaining and controlling the pole, was responsible for any negligent condition of its appurtenances which it permitted to exist by its passive acquiescence, whether such acquiescence followed actual knowledge or resulted from failure to acquire knowledge. Gottlieb v. N. Y. L. E. & W. R. R. Co., 100 N. Y. 462; Goodrich v. W. Y. C. & H. R. R. R: Co., 116 id. 398; Gray v. Boston Gas Light Co., supra ; Coupland v. Hardingham, 3 Camp. 398; Anderson v. Manhattan Ry. Co., 1 Misc. Rep. 504; 21 N. Y. Supp. 1.

But it is further insisted by the defendant’s counsel that even though there was an omission to fasten the insulator securely upon the crossarm, such omission cannot be said to have been the proximate cause of the plaintiff’s injury.

It is often a difficult matter to determine with any degree of accuracy what is the proximate cause ” of an accident, and it frequently happens in cases of negligence that several causes concur to produce certain results, one or all of which may be denominated “ proximate.”

This is peculiarly true of the case in hand, for it is absolutely certain that the plaintiff would have escaped injury upon the day in question but for the intervention of a third party, for whose acts the defendant is in no wise responsible, so that it may be asserted with equal certitude that the raising of the fire-alarm wire by Hurlburt was a proximate cause of the consequences which followed. But, on the other hand, had the insulator been firmly attached to the peg upon which it rested, and once more, in considering the question, it must be assumed it was not, the raising of the wire probably would not have displaced it and caused its fall. It would seem, therefore, that the case comes fairly within the rule which holds that where several proximate causes contribute to an accident, either of which is an efficient cause, without which the accident would not have happened, it may be attributed to any or all of them. Ring v. City of Cohoes, 77 N. Y. 83; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657.

The questions discussed upon this motion, as well as upon the trial, possess great interest, and are not wholly divested of embarrassing features, - but mature reflection and careful consideration, with the aid of such light as is furnished by the authorities cited, incline me to believe that the case was properly submitted to the jury, and that the verdict should not be-disturbed.

The motion is, therefore, denied, with ten dollars costs.

Motion denied, with ten dollars costs.  