
    Christopher J. Schmidt, Respondent, v. New York Telephone Company, Appellant. Joseph J. Schmidt, Respondent, v. New York Telephone Company, Appellant.
   Appeal from a judgment of the Supreme Court, entered in the Schenectady county clerk’s office in favor of plaintiffs Christopher J. Schmidt and Joseph J. Schmidt for $289 damages and costs and $390.50 damages and costs, respectively, upon the verdicts of a jury, entered in the Schenectady county clerk’s office on June 14, 1939, and from an order denying defendant’s motion to set aside the verdicts and for a new trial. The actions are for damages on account of injuries sustained by the plaintiffs when the automobile in which they were riding struck some telephone wires of the defendant which had dropped because of a broken pole and were hanging over the highway. The accident occurred late in the evening. Defendants were proceeding along the highway when the wires were suddenly discovered immediately in front of their automobile. The car struck the wires and was forced out of the road and into a tree. The pole which had supported the wires was what is known as an angle pole and had broken about a foot from the ground and was itself hanging near the edge of the highway suspended by the wires. The pole was fourteen inches in diameter at the base, of which five inches had rotted off, leaving about eight inches of solid wood in the center. There was a question of fact as to whether this rotted condition caused the pole to break or whether it had been struck by another automobile and been broken off shortly before the accident in question. It was quite apparent that the rotted condition had existed for some time so that the defendant had constructive if not actual notice of the dangerous situation. Judgments and orders unanimously affirmed, with one bill of costs. Present — Hill, P. J., Crapser, Bliss, Heffernan and Foster, JJ.  