BGHZ 12, 94 III. Civil Senate (III ZR 221/52) = NJW 1954, 913
14 January 1954
Professor B.S. Markesinis
K. Lipstein

The plaintiff, who was insured by M, while riding his motor cycle at night collided with one of four telegraph poles which were lying across the road and suffered a severe fracture of his skull. The District Court allowed his claim for damages, but the Court of Appeal of Frankfurt rejected it. Upon a second appeal the judgment below was quashed and the case referred back for the following


I. The defendant, the Federal Post, is only liable for the consequences of the accident if the case falls within the ambit of a particular statutory provision. The law in force at present does not provide for liability ‘according to general principles’; in particular it does not contain a principle that everybody is liable to make good any damage caused by his property unless he can prove that he is not to be blamed for the fact that the location of the property imperilled others. Absolute strict liability of the defendant in respect of the telephone lines maintained by it deserves even less consideration.

II. The plaintiff complains that the defendant did not maintain its installations in a safe condition for traffic and that its employees did not take measures for removing the recent obstacle to traffic. None of these considerations is sufficient to hold the defendant liable under § 839 BGB and Art. 131 of the Constitution of Weimar; even in the case of public operations both the duty to maintain an installation adequately for traffic purposes as well as the duty to remove sudden obstacles to traffic are obligations which do not arise out of a special relationship of protection between the public authority and a third party who happens to have been affected accidentally; the real reason is that objectively a dangerous situation has been created. Where such obligations to take safeguarding measures are concerned public corporations are not to be treated differently from private persons, even if the activity in question may bear the character of an act jure imperii. The liability of the public corporation is therefore governed by §§ 823, 831 BGB. Following the practice of the Reichsgericht, this Division in its decision [reference] has given detailed reasons for so holding; the observations made there as to the duty to safeguard the public in respect of a public path apply here as well. The appellant is wrong in relying in this connection on the argument that according to the practice of the courts the activity of the Federal Post has been regarded increasingly as being exercised jure imperii. The appellant is also wrong in referring to the decision of the Reichsgericht [reference]; it is there stated expressly that the principle set out here applies also to damage caused by the laying of telephone cables; as regards ‘third-party outsiders’ no liability arises under § 839 BGB; liability in the exercise of official functions to protect a third party against damage exists only in favour of those who are obliged, by virtue of the Law concerning Telegraph Lines to suffer interference with their property. However, this is not the case.

III. The Court of Appeal has held correctly that the defendant is not liable for having failed to remove the fallen telegraph poles from the highway in time.

1. The objection of the appellant to the conclusion of the Court of Appeal that the defendant is not liable under § 831 is unfounded.

(a) According to a constant practice no liability arises under § 831 BGB, even in the absence of separate evidence in exoneration, if the employee has acted in such a manner as any carefully selected person would have done [reference].

(b) The technical supervisor acted, however, as any other employee, including he who acts with the necessary care, would have acted. It may be that the night in question was stormy and that this could also be observed at the Post Office in L. It cannot be said, however, that in these circumstances an employee of the Post Office, acting with the necessary care, on noticing a partial disruption of the telephone lines would have dispatched immediately a repair column during the night. Since only seven out of thirty lines failed to function, it could not be assumed that poles had fallen and that the lines had collapsed. The defendant has stated, and the plaintiff has not disputed it, that such interruption had also occurred previously due to the fact that damp had penetrated the cables and because ‘lead fatigue’ had affected the strength of the cables. The parties agree that during the night when the accident happened the weather was wet. It is understandable, therefore, that the technical supervisor also attributed this disruption of the lines to the causes which had been observed previously. It must be conceded to the defendants that little purpose would have been served in attempting to remedy this disruption if a repair column had been sent on a search errand during the night. The Act on Telegraph Lines, too, assumes, as § 12 III shows, that disruptions are normally dealt with during daytime only.

2. In these circumstances, the appellant is wrong in contending that the telephone business had been supervised inadequately by the defendant and that it was therefore liable for the damage—directly in accordance with § 823 BGB—thus ruling out the need to prove that one of its organs had been at fault. Such liability has been held by the practice to exist, e.g. if a public corporation has failed to take any measures at all which serve to control its installations in order to ensure the safety of traffic [references]. During the night from 15 to 16 February 1948, too, an employee of the Post Office had been charged with supervising the functioning of the telephone lines. It need not be decided whether the technical supervisor could be regarded as an ‘organ’ of the defendant in the meaning of §§ 89, 30, 31 BGB; the Court of Appeal has rightly denied that he acted negligently. The observations made above in respect of the question whether a carefully chosen employee would have acted in the same way have shown that he did not act culpably. It has not been demonstrated either that during the night when the accident occurred another employee of the defendant or one of his organs negligently omitted to attend to the telephone lines. No claims arise therefore on the ground that the obstacle to traffic had not been discovered and removed in time.

IV. The plaintiff also bases his claim on the ground that the defendant had not maintained its telephone poles properly; the accident had occurred because the storm had felled a rotten pole which by means of the telephone cable had in turn pulled down the other poles which had been secured inadequately. This allegation has not been considered entirely satisfactorily by the court below.

1. The Court of Appeal does not consider this allegation as forming a basis of the claim because in its opinion the fact has not been proved and is incapable of being proved that the accident actually occurred in the way alleged by the plaintiff; the possibility should not be ruled out that an American lorry had collided with a pole and had thus caused the collapse of the telephone lines.

In so far as the appellant argues that the Court of Appeal had misunderstood the burden of proof, seeing that faced with an actual situation in violation of the traffic rules the defendant bore the burden of proof ‘that it is not responsible for the dangerous condition of its installation’, his contention cannot be accepted. It is for the plaintiff to prove that the damage was caused by faulty maintenance of the installation not only where the claim is based on § 823 BGB but also in the case of § 836 BGB [reference]. This follows from the principle that a claimant must prove that the factual conditions exist for the creation of a right.

2. The Court of Appeal overlooks, however, that the defendant may be liable even if an American lorry had collided with the pole, thus leading to the collapse of the telephone lines. The Court of Appeal is of the opinion that the possibility of the lorry by colliding with it made a strong impact on one of the poles is to be ruled out. In the absence of any traces on one of the collapsed poles, experience shows that, if at all, the collision would only have had a weak impact on the pole. If, however, even a slight impact with the pole could have resulted in a complete collapse of a part of the installation, the possibility would exist that inadequate maintenance of the installation was in fact a contributory cause of the accident. It must be considered whether the rotten condition of one of the poles, conceded by the defendant itself, was so considerable and, apart from this the other poles had been secured insufficiently so as to render them no longer safe for traffic. It need not be decided whether the storm or the lorry broke the pole. Neither does a natural event create liability nor does the act of a third party exclude liability in all cases. This principle applies also in respect of § 836 BGB. In dealing with the question of causality, the determining factor is whether the structure was so inadequately maintained or secured that even a minor impact, to be taken into consideration as normal, could lead to its collapse. The ‘last’ cause may perhaps never be ascertained, and yet liability may not be excluded for this reason.

If upon further examination it should appear that the telephone poles were deficient in the sense indicated here, the defendant would be liable under § 823 BGB in conjunction with §§ 89, 31, 30, unless it proves that none of the organs is to blame; the fact alone that another dangerous situation was allowed to persist is a sufficient indication that the care was lacking which is required for safeguarding traffic . . .

In view of the special features of this case, liability under § 823 BGB would exist if it should be established that the telephone lines were inadequately maintained, unless the defendant can exonerate himself. In these circumstances it is unnecessary to discuss the question raised by the appellant as to whether liability under § 836 BGB can arise even if the damage has not been caused by the ‘mobile force’ of the collapsing structure but by the fact that the collapsed structure is allowed to lie on a road which carried public traffic. § 836 does not involve a different type of case but only a reversal of the burden of proof [reference]. Thus § 836 can be disregarded if within the framework of § 823 BGB the debtor is called upon exceptionally to prove that he is not to blame.

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