Lundy v. Delmas

The Court. The plaintiffs brought this action against the defendants, who are sixteen of the regents of the University of California, to recover damages against them, in their individual capacity, for the death of Daniel Lundy, plaintiffs’ father.

It is alleged in the complaint: “ That on and for a long time prior to the sixteenth day of November, 1891, each and all of said defendants were, and from thence hitherto have been and yet are, the regents of the University of California, and during all of said time were acting as such, and exercised the duties and assumed the obligations of such regents, and as the board of such regents.

“ That, among other things, said defendants, as said regents and as such board of regents, all of said time, as part of their power and duty, constructed, and during all of said time maintained, a telegraph and telephone line from the city of San Jose, in said county of Santa Clara, to the Lick observatory on Mount Hamilton in said county, which said line consisted of wires strung upon poles planted in the ground along and near the public highway.

“ That said defendants, as said regents, so negligently maintained said telegraph and telephone line that by their culpable negligence and inattention they allowed divers of said poles thereof to rot and decay away, and to fall to the ground by reason of their rotten condition. '

“That a short time prior to said sixteenth day of November, 1891, one or more of said poles had become rotted, as aforesaid, and by reason of such rotting allowed to fall to the ground in such manner and place [657]that the said wires attached thereto were brought across the public highway in such near position to the ground as to endanger the lives of persons traveling thereon.

“ That said wires were so negligently left in said dangerous position by said defendants, and that by reason thereof one Daniel Lundy, who was then on said sixteenth day of November, 1891, traveling along said highway, was, without any fault on his part, caught by said wires and thrown to the ground, and instantly killed/’

The case was tried before a jury, and the verdict was in favor of plaintiffs for ten thousand dollars, on which judgment was entered.

At the close of plaintiffs’ evidence the defendants moved for a nonsuit upon the grounds: