JAMES E. BAILEY, as Administrator, etc., of EDITH L. BAILEY, Deceased, Respondent,
THE BELL TELEPHONE COMPANY OF BUFFALO and the TOWN OF YORK, Appellants.
APPEAL by the defendants, The Bell Telephone Company of Buffalo and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 3d day of February, 1910, upon the verdict of a jury for $2,000, and also from an order entered in said clerk's office on the 3d day of February, 1910, as resettled by an order entered on the 25th day of February, 1910, denying the defendants' motion for a new trial made upon the minutes.
Fred C. Goodwin, for the appellant Bell Telephone Company.
John F. Connor, for the appellant Town of York.
Frank K. Cook, for the respondent.
On the 10th of June, 1908, the plaintiff's intestate, a young lady twenty-one years of age, was riding with three children easterly along a highway in the defendant town on their way to the union school at Greigsville. While traveling on a down grade the strap which held the thills in place broke, or unfastened, and the thills tilted up, frightening the horse, so that he became unmanageable, running away and colliding with another carriage traveling in the same direction, and both rigs were overturned and the plaintiff's intestate was thrown against a pole of the defendant company erected in the roadside and received injuries from which she died within a few hours.
It is the claim of the plaintiff that the defendant company was negligent in locating the pole so close to the traveled part of the highway, and the commissioner of the defendant town in allowing it to remain in that place.
The defendant company in the summer of 1904 erected poles in the highways through the town and they were generally placed where directed by the then commissioner of highways of the town. At the place of the accident the traveled part of the highway was about twenty-four feet in width. The pole was at least thirty inches north of the northerly edge of the part devoted to travel and about thirteen and one-half feet from the boundary fence on the north side of the road. Between the pole and the fence was a row of shade trees about six feet from the fence, and the land between the fence and the trees was used as a sidewalk, and from the walk to the traveled road was a grass plot. The pole was about twenty feet in height above the ground, eight inches in diameter at the top and larger at the bottom. There was a crossarm on the pole extending out on either side between four and five feet in a northerly and southerly direction, which brought the northerly end within about three feet of the trunk of the nearest tree. The tree was considerably higher than the pole.
The Legislature has granted to telephone companies the authority to erect and maintain their poles in the highways. (Trans. Corp. Law [Gen. Laws, chap. 40; Laws of 1890, chap. 566], § 102, now Trans. Corp. Law [Consol. Laws, chap. 63; Laws of 1909, chap. 219], § 102.)
In availing itself of this authority the company must locate its poles so that they will not interfere or endanger unneces sarily or unreasonably the use of the highways by the traveling public, which is its paramount purpose. The highway where the accident occurred was in a rural community and twenty-four feet was ample space for those driving over it. The company was not negligent in placing the poles two and one-half feet outside the traveled roadway. ( Scofield v. Town of Poughkeepsie, 122 A.D. 868; Robert v. Powell, 168 N.Y. 411.)
It is usual to place shade trees, telegraph and telephone poles, hydrants, stepping stones, hitching posts and other objects in the highways, and, if the use of the roadway is not interfered with, they are not ordinarily unlawful obstructions. Such use of the highway is regarded as proper and necessary. (Cases cited; Van Wie v. City of Mount Vernon, 26 A.D. 330; Dougherty v. Village of Horseheads, 159 N.Y. 154; Dubois v. City of Kingston, 102 id. 219; Wolff v. District of Columbia, 196 U.S. 152; Jordan v. City of New York, 44 A.D. 149; affd., 165 N.Y. 657.)
It is the contention of the respondent that the telephone company in locating the poles did not comply with the direction of the commissioner of highways and, therefore, the pole was an unlawful obstruction in the highway. It appears that the commissioner told the foreman of the company to set the poles within six feet of the road fence. This could not be done at this place without mutilating or destroying the shade trees, to which the owner objected, so they were placed nearer the roadway. The commissioner learned where they were located, and never objected or asked that the poles be moved. I think this was no such deviation from the direction of the commissioner as made the line of poles unlawfully in the ...