
    Jerome W. Staring, Resp’t, v. The Western Union Telegraph Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 6, 1890.)
    
    1. Highways—Obsteuctiohs.
    The right of a telegraph company to use a highway for the purpose of constructing, maintaining or removing its wires is subject to the use of the traveling public, and it has no right to so use it as to obstruct it or render it dangerous to public travel.
    3. Same—Negligence.
    The complaint alleged that while plaintiff was driving along a highway the defendant negligently, wrongfully and unlawfully attempted to throw a wire which it was removing over his horse and wagon, and negligently, wrongfully and unlawfully struck the horse and wagon, causing the horse to run away and injure plaintiff. The court instructed the jury that plaintiff was entitled to recover if they found that the injury was caused by a wrongful obstruction of the highway, and he was free from contributory negligence, and also charged as to negligence. Held, that the complaint was sufficient to sustain a recovery, and that defendant’s contention that the case was submitted on an erroneous theory was not well taken.
    3. Same—Damages—Evidence.
    Evidence as to plaintiff’s physical and mental condition before and after the injury is admissible in such an action where such evidence is confined to facts within the witnesses’ observation.
    Appeal from a judgment entered in Chemung county, November 14,1877, on the verdict of a jury, for $9,237.19, and from an order denying a motion for a new trial made on a case and exceptions.
    
      Jacob Schwarts, for app’lt; Frederick Collin, for resp’t
   Martin, J.

The plaintiff in his complaint alleged that as lie was driving upon a public highway in the town of Elmira, N. Y., the defendant, while engaged in removing the telegraph wires from its poles (which were set along such highway), negligently, wrongfully and unlawfully attempted to throw one of its wires over the plaintiff, his horse and wagon, while he was on said highway, and in doing so negligently, wrongfully and unlawfully struck the horse with the wire, and also at the same time negligently, wrongfully and unlawfully struck the plaintiff’s wagon, and thereby frightened his horse and caused him to run away and greatly injure the plaintiff. A careful examination of the evidence-shows that it was sufficient to justify the jury in finding the facts alleged.

The court submitted to the jury the question whether the highway where the accident occurred was wrongfully obstructed by the defendant, and charged that if the plaintiff’s injury was caused by such obstruction, and he was free from contributory negligence, he was entitled to recover. The court also charged: “If you find from this evidence that in consequence of the carelessness or negligence of this defendant this plaintiff has been injured, and that injury has been caused without any contributory negligence on his part, and you come down to the question as to how much damage he has sustained, you will consider that question as coolly, as dispassionately as you would consider a question of that kind between two of your neighbors.” At the conclusion of the charge the defendant’s counsel requested the court to charge “that there can be no recovery in this case unless they find that the defendant’s servants negligently and wrongfully, in an attempt to throw the wire which they were removing over the plaintiff, struck the horse or wagon.” To this request the court replied: I refuse to-charge upon that subject or other than what I have charged upon that subject.” To this the defendant excepted. The defendant also excepted to the charge so far as it instructed the jury that the plaintiff was entitled to recover if they should find that the injury was caused by a wrongful obstruction of the highway by the defendant.

The plaintiff was lawfully upon the highway when the accident occurred. He had a right to assume that it was in a safe condition and would not be obstructed or rendered dangerous.by any act of the defendant. Jennings v. Van Schaick, 108 N. Y., 530; 13 N. Y. State Rep., 686. The defendant’s right to the use of the highway for the purpose of constructing, maintaining or removing its telegraph line was subject to the use of the'traveling public. The defendant had no right to use the highway so as to obstruct it or render fit dangerous to public travel. Sheldon v. Western Union Tel. Co., 51 Hun, 591; 22 N. Y. State Rep., 837.

The appellant claims that the case was submitted upon an erroneous theory, in that the cause of action alleged was for negligence while the case was submitted to the jury on the ground of an unlawful and wrongful obstruction of the highway. The evidence was sufficient to justify the submission to the jury of the question whether the defendant wrongfully obstructed the highway at the place where the accident occurred thereby causing the plaintiff’s injury, and to uphold the verdict on that ground. Therefore the only question presented is whether under the pleadings it was error to charge that the plaintiff might recover upon that ground. Ho objections to the evidence were made on the ground of the insufficiency of the pleadings nor were the exceptions to the charge or refusals to charge placed on that ground.

The complaint was for the wrongful and unlawful act of the defendant as well as for its negligence. The allegations of the complaint were not of a mere omission by the defendant to perform some act or duty, but were that it committed a positive áct which was wrongful and unlawful. The act was proved as alleged: The proof tended to show that it constituted a wrongful and unlawful use of the highway which amounted to an obstruction. It will be observed that the court in effect submitted to the jury the question whether the transaction which was the basis of this action was as alleged and proved by the plaintiff or whether it was as claimed by the defendant, and that the court instructed the jury that if it was as alleged and proved by the plaintiff he could recover; if not, that their verdict should be for the defendant. In the charge the court sometimes referred to the act of the defendant as proved by the plaintiff as an obstruction of the highway, and at others as negligence by the defendant.

The error- claimed seems to relate more to the form of expression employed by the learned trial judge than to the substance or effect of the instructions given. We think the complaint was sufficient to sustain the recovery in this action, and that the defendant’s contention that the case was submitted to the jury upon an erroneous theory cannot be sustained.

The defendant’s exceptions to the rulings of the trial court on the reception and rejection of evidence were quite numerous. Most of them related to the reception of evidence tending to show the physical, and perhaps to some extent the mental, condition of the plaintiff before the injury, and also afterwards. The evidence objected to was as to his hearing, memory, temper, manner of doing business, his ability to labor and his health, before and after the accident. The purpose of this evidence was to show the nature and extent of the plaintiff’s injury. An examination of the rulings to which these exceptions were taken discloses that the court .confined the testimony of the witnesses to facts within their observation, which tended to establish the plaintiff’s condition in those respects. It is impracticable to examine each of these exceptions separately and in detail. The learned trial judge was quite careful in excluding any evidence of the opinion or conclusion of the witnesses, and in confining them to facts within their knowledge which would enable-the jury to determine the extent of the plaintiff’s injury. We think these rulings are sustained by the authorities. Van Wagonner v. N. Y. Cement Co., 36 Hun, 552; People v. Eastwood, 14 N. Y., 562 ; Blake v. People, 73 id., 586; Hallahan v. N. Y., L. E. & W. R. R. Co., 102 id., 194; 1 N. Y. State Rep., 367; Johnson v. Myers, 103 N. Y., 663 ; 3 N. Y. State Rep., 651; Duntzy v. Van Buren, 5 Hun, 648; Higbie v. Guardian Mut. L. Ins. Co., 53 N. Y., 603; Adams v. People, 63 id., 621; Maine v. People, 9 Hun, 113; Harris v. Panama R. R. Co., 36 Supr. Ct., 373, 378; Eggler v. People, 3 T. & C., 796. Hone of these exceptions were well taken. We find no other exceptions that require special consideration.

We think the evidence was sufficient to justify the submission of the case to the jury, that no error was committed on the trial which requires a reversal of the judgment appealed from, and that the judgment and order appealed from should be affirmed, with costs.

Judgment and order affirmed, with costs.

Merwin, J., concurs; Hardin, P. J., not sitting.  