In my opinion, the trial court erred in entering judgment n.o.v. in favor of Pacific Telephone and Telegraph Company.
In 1926, the city of Seattle abandoned the pole which caused the damage herein complained of. Thereafter, the telephone company appropriated the pole and attached one of its wires thereto, this use continuing up to the time of the accident. The telephone company thereby incorporated the pole into its system. It is known that poles will rot, and that they may, by reason of some such deterioration, become dangerous to persons passing within striking distance. This is particularly true of a pole standing in a public street.
The telephone company, by incorporating the pole within its system, became responsible for its maintenance in a reasonably safe condition, and under the circumstances here shown should be held liable for damage occasioned by its fall. The mere fact that the company appropriated the pole without paying any consideration therefor is immaterial. It adopted the idle and abandoned property, and while its act does not exonerate the city from liability to the respondent herein, the company, as appropriator and user of the pole, has made itself jointly responsible for damage occasioned by its fall, that having been a possibility reasonably to be anticipated.
The falling of dead branches from a tree used as a support for a guy wire presents a different question, and in my opinion the second of the cases cited in the majority opinion, Reynolds v.Van Beuren, 155 N.Y. 120, 49 N.E. 763, 42 L.R.A. 129, supports my view. In that case, the owner of an advertising sign placed on the roof of a building was held not liable to a person injured by the falling of the sign due to a defect in the construction of the building. The court refers to the use of the property as "remote," and calls attention *Page 56 to the general rule which makes the owner, the tenant, or theparty in possession, responsible. The court truly stated that the foundation of the duty is the possession and right to manage and control the property. In the case at bar, the telephone company was in possession of the pole, exercised complete dominion over it, and by long years of acquiescence on the part of the city was in full control thereof. It should not now be heard to say that it is not responsible for damages occasioned by its fall simply because, technically speaking, it was not the owner of the property.
I concur with the majority in holding the appellant city of Seattle liable in this action, but I dissent from the affirmance of the judgment in favor of respondent Pacific Telephone and Telegraph Company. *Page 57