Clough v. Company , 75 N.H. 84 ( 1908 )

The motion for a nonsuit was properly denied There was sufficient evidence from which it could be found that the defendants were negligent and that the plaintiff was in the exercise of due care.

The evidence that the wires were strung across the highway without license, as required by chapter 81, Public Statutes, was properly left to the jury, together with the other evidence in the case tending to show that the defendants were negligent. The instructions of the court in regard to this matter were correct. Lane v. Concord, 70 N.H. 485; Bresnehan v. Gore,71 N.H. 236; Nedeau v. Sawyer, 73 N.H. 70.

An alleged agent may testify to the fact of his agency. Union Hosiery Co. v. Hodgson, 72 N.H. 427, 432; Kent v. Tyson, 20 N.H. 121, 126; 2 Wig. Ev., s. 1078, note 4. But a third person cannot testify to declarations made by him for the purpose of establishing his agency. Nebonne v. Railroad,67 N.H. 531, 2. Wig. Ev., s. 1078. His declarations, however, may be "received provisionally as verbal acts indicating that he was acting on another's behalf, not his own, leaving it to subsequent proof to establish his connection as agent." 2 Wig. Ev., s. 1078. Therefore, the declarations of Burbank to the extent that they were. used to establish his agency were incompetent; but as part of the res gestae and as bearing upon the plaintiff's exercise of due care in attempting to raise the wires from the roof of the building, they were clearly admissible. The plaintiff had the right to understand, from the fact that Burbank came and took charge of the wires in response to a request made upon Hayden, that he could properly rely upon such information as Burbank gave him, and that it would be safe to attempt to raise the wires as he did.

The exception taken to the plaintiff's failure to show that written notice was served on the defendants, as required by section 14, chapter 81, Public Statutes, is without merit. No attempt was made to disconnect the defendants' wires or to remove their supports; and if there had been, it is not clear that the defendants would have been entitled to the statutory notice. It would seem, rather, that the notice contemplated by the statute was intended to apply only to cases where the wires or poles that are to be disconnected or removed are lawfully in the highway.

The plaintiff concedes that Hayden was not expressly authorized by the power company to direct Burbank to take charge of their high tension wires at the place where the plaintiff was injured; and the defendants' motion for a nonsuit and exception to the charge presents the inquiry whether there was any evidence from which implied authority could be found. It appears that Day was the chief electrician of the railway company; that he not only had charge of the high tension wires of that company, but also of the power company, and had under him some fourteen linemen who were located in different places through the territory traversed by the lines of the two companies. Each crew of men had a foreman. The Hampton crew, whose duty it was to take charge of the lines where the plaintiff was injured, consisted of three men and a foreman. The linemen constructed all the new work of the railway company, and moved and repaired all of their lines of wire when necessary. They also had charge of the high tension lines of the power company. Each company bore their part of the expense thus incurred. On the day of the accident, when Hayden was requested to send a lineman to take charge of the wires in the vicinity where the house was being moved, all the linemen in the Hampton crew were away at work, and Burbank, the foreman of the Stratham car-barn, who also tended a rotary machine for the defendants at that place, was sent. As foreman of the car-barn for the railway company and tender of the rotary machine for the power company, he had nothing to do with the high tension lines of either company. There was no evidence that Hayden, or any officer of the railway company, had at any time, other than the one in question, called upon any of the men in the employ of the power company or of the railway company, except linemen under the supervision of Day, to take charge of the high tension wires of the power company. The facts, that it was the duty of linemen employed under Day to take charge of the power lines of both companies, that they were required to report to him what work was necessary to be done on both lines, and in case of an emergency to make repairs themselves without reporting, have no tendency to prove that Hayden was authorized by the power company to direct men in the employ of the railway company or of the power company, other than linemen, to take charge of or work upon the high tension lines of the power company. If it might be found that officers of the railway company, besides Day, were authorized to direct linemen to make repairs upon and take charge of the high tension lines of the power company, it could not be found that they had authority to direct men who were not linemen under Day to do such work, and for this reason there must be a new trial.

Verdict set aside.

All concurred.