This is an action brought by Postal Telegraph-Cable Company against the Battle Creek Gas Company for recovery of damages for injury done to its cable as well as for the loss of the use of said lines during the period of repair. The cause was tried without a jury and the trial court granted plaintiff damages in the sum of $1,074 for labor and material in repairing the cable and the further sum of $1,682.66 for rental value or loss of use of lines. Defendant appeals.
Plaintiff is a Michigan corporation authorized and engaged in the operation of telegraph and cable service in the State of Michigan and elsewhere. Defendant *Page 483 company is also a Michigan corporation authorized and engaged in the business of supplying gas to its patrons within the city of Battle Creek.
In the months of January, February, and March of 1934 and prior thereto, plaintiff in the conduct of its business leased cable space in a conduit on East Michigan avenue in the city of Battle Creek. The conduit was located on the north side of East Michigan avenue about 45 inches from the curb and about two feet under the surface. The conduit consisted of two fiber ducts inclosed in concrete about three inches thick. At the time above mentioned, the defendant company maintained a service main and laterals running therefrom to its patrons on East Michigan avenue. Its service main was located on the south side of said street.
In the fall of 1933, the city of Battle Creek excavated a trench in the center of the street to lay a storm sewer pipe preparatory to repaving the street. When the street was opened it was found that some of the laterals of the gas company running from their service main to the homes of customers living on the north side of the street had been damaged by rust and corrosion; and it became necessary not only to replace some of the laterals, but also to raise others due to the location of the sewer in the middle of the street. In removing and replacing these laterals it became necessary for defendant company to carry on certain underground operations by means of tunneling. This work was done in the month of January, 1934.
On February 7, 1934, four of the wires in the cable of plaintiff company failed to render proper service and the line was repaired by transferring the wires. On March 5, 1934, all of the lines in the cable failed and went out of commission. Upon examination it was found that the trouble was in the cable between *Page 484 manholes Nos. 19 and 21, between Irving and Elm streets on East Michigan avenue. Investigation showed that the concrete envelope inclosing the cable had been damaged and broken in three places, and that the cable had been pierced in three places by some sharp instrument. A crew of men restored service on the evening of March 6, 1934, and later installed a new cable.
It is the claim of plaintiff that defendant did not follow the usual and approved method of digging test holes to locate the conduit, but proceeded by means of a tunneling spoon from the center of the street to the north curb; that in so doing they broke and damaged the concrete envelope inclosing the conduit which contained the wires; and that the broken conduit admitted moisture into the cable which in time caused the lines to fail.
It is the claim of defendant company that plaintiff has failed to sustain the burden of proof of showing that defendant and not some other agency injured plaintiff's cable; that plaintiff's cable injuries occurred in three separate locations; that a piece of cable taken from a point 6 feet west of manhole No. 21 near Irving street shows that three wires were cut and a fourth was touching the armor causing a ground; that four lines of this cable failed on February 7, 1934, but were not removed until March 6, 1934; that from the damage shown to have been done to this cable, it failed to function the exact instant it was cut; that on February 7, 1934, defendant company had no men working in that vicinity; that they had completed their lateral replacements January 16, 1934, and did not return to install the drop and drip lines until February 11, 1934, four days after the line failed; that a piece of cable taken from the underground conduit at a point 237 feet west of *Page 485 manhole No. 20, which is approximately equidistant between Irving and Elm streets, shows that all of the wires were cut and frayed and a number of holes punched in the armor of the cable and, from the damage done, the service would have failed immediately; that the damage done to this cable was approximately 160 feet west of the nearest point where defendant's employees worked; that a piece of cable taken from the conduit 78 feet west of manhole No. 20 above referred to and in front of the colored Baptist church was at a point where defendant company's employees repaired and replaced some laterals, but the injuries appearing on the cable were punched by a sharp pointed instrument and could not have been made by a tunneling spoon; and that all damages could have been done by other agencies such as the Civil Works Administration, the city, or private plumbers who were employed in making lateral sewer connection at the time.
The trial court found as a fact that no other agencies except defendant company did any work north of the center of the pavement prior to the failure of plaintiff's lines; that the injuries to the cable were made by a sharp instrument such as the tunneling spoon used by defendant's employees in its operation in removing, replacing and elevating their laterals; that the damage was occasioned by some direct force applied to the conduit and cable in question; that in three instances the tunneling extended clear through to the curb, in one case to replace a service and in the other two to raise the laterals; that in doing so they struck a hard surface and removed large pieces of cement.
In our discussion of the issue involved in this case we have in mind that the rule of res ipsa loquitur is not followed in Michigan. *Page 486
In Fish v. Railway, 275 Mich. 718, we said:
"The mere occurrence of an accident does not raise a presumption of negligence and the burden of proof remains with plaintiff and does not shift."
In the instant case the burden was upon plaintiff to establish the fact that the damage was occasioned by the negligence of defendant. We recognize the rule that in cases tried by the trial judge sitting as a trier of the facts we will not substitute our judgment on questions of fact unless the evidence clearly preponderates in the opposite direction. See Leonard v. Hey, 269 Mich. 491 (37. N.C.C.A. 111).
The facts show that the cable near Irving street was damaged by having three wires cut and one touching the armor. From the nature of the damage the service must have ceased instantly, but the cable was not examined until March 5, 1934. The trial court assumes that because defendant company was the only known agency doing any work on the north side of the street, it must have caused the damage. In our opinion there is no competent testimony to show that defendant company caused the damage at this point.
The evidence shows that the damage done to the cable at a point 237 feet west of manhole No. 20 is as follows: All the wires were cut and frayed and a number of holes punched in the armor of the cable. At this point service must have ceased immediately upon the cutting of the wires. The record shows that these wires were removed March 6, 1934; we find no competent testimony showing that defendant company did any work in that particular vicinity at the time service was interrupted.
In our opinion a question of fact is raised as to whether defendant company caused the damage to plaintiff's cable in the vicinity of the colored Baptist church. It is admitted that defendant company *Page 487 did some tunneling in this vicinity in repairing and removing some laterals. The trial court found that the tunneling spoon could have caused the damage shown.
In Fish v. Railway, supra, we said:
"We have held that negligence may be inferred from circumstances and that where the circumstances are such as to take the case out of the realm of conjecture and place it within the field of legitimate inferences from established facts, at least a prima facie case is made."
We think the above rule applies to facts pertaining to the third point of damage and concur in the finding of the trial court that defendant company caused the damage at this point.
In view of the fact that the amount of damages allowed by the trial court is based upon injury to the cable at three places and defendant company being liable only for damages at one of these points, it follows that the amount of damages is excessive.
The judgment should be reversed and the cause remanded for the purpose of determining the amount of damages suffered by plaintiff company to its cable at the point above mentioned. Defendant should recover costs.
POTTER and CHANDLER, JJ., concurred with SHARPE, J.