89 Kan. 186 | Kan. | 1913
The opinion of the court was delivered by
A partnership which was conducting a local telephone business attached a wire to a line of poles of the Missouri and Kansas Telephone Company, under a contract allowing this to be done for an agreed consideration. The owner of the poles, which will be spoken of as the telephone company, was engaged in replacing them by a new set. For this purpose it had a crew of men at work removing from the old poles all of its own wires excepting one, which was described as a “dead” wire. Walter Aaron, in the employ of the partnership referred to, was following this crew and removing the two remaining wires. For this purpose he climbed a pole from which all but these two wires had been removed. He took one off, and as he loosened the other the pole fell with him, inflicting injuries from which he died. His parents sued the telephone company, alleging its negligence to have been the cause of his death. They recovered a judgment and the defendant appeals.
“One who supplies a thing for such use by others that it is obvious that any defect will be likely to result in injury to those so using it is liable to any person who, using it properly for the purpose for which it is supplied, is injured by its defective condition. The doctrine of invitation has been invoked as a ground of liability in such cases, proceeding upon the theory that he who furnishes a thing for a certain use by others invites others to use it, and is therefore bound to make it safe for such purpose.” (29 Cyc. 484.)
In a celebrated case involving the basis of non-contractual liability for negligence, Sir William Baliot Brett, Master of the Rolls, deduced from the prior de
“Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of inj ury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” (Heaven v. Pender, L. R. 11 Q. B. Div. 503, 509.)
This generalization has met with judicial approval in this country as well as in England. (Huber v. The La Crosse City R. Co., 92 Wis. 636, 66 N. W. 708, 53 Am. St. Rep. 940, 31 L. R. A. 583. See, also, Note, 46 L. R. A. 41, 109; 1 Thompson’s Commentaries on the Law of Negligence, § 979; 2 Cooley on Torts, 3d ed., p. 1491.) The facts of the case are unusual, and we find no precise parallel in the decisions, but the circumstance that the telephone company remained in full control of the poles is a sufficient basis for establishing a noncontractual liability. Of this phase of the matter it has been said:
“No question has ever been raised as to the propriety of the rule that, provided the plaintiff has a right to be where he was at the time he was injured, the fact that the defendant or his servants had control of the injurious agency is a sufficient ground for requiring him to indemnify the plaintiff independently of the questions whether there was or was not any privity of contract between them, and whether the injurious agency was real or personal property.” (Note, 46 L. R. A. 38.)
Such a liability is measured by the same standard as that of an employer to his employee. The cases cited bear out this statement of the same note:
“Whether the person who owns or supplies the agency which caused the injury occupies the position Of master, or is a mere stranger, as respects the servant injured, the duty incumbent on him must necessarily*190 be measured by the standard of ‘ordinary care,’ and neither on principle or authority is there any reasonable ground for arguing that this expression can have a different meaning in cases involving an exposure of the servant to exactly the same perils, simply because the party who subjects him to those perils is not his master.” (Note, 46 L. R. A. 52.)
If no change of poles had been in progress and a pole had broken while Walter Aaron was climbing it to attach or repair the wire, causing him to fall, 'he being without fault in the matter, liability of the company could be based upon its negligence in permitting the pole to become defective. But the defendant argues that there could be no liability here for allowing the pole to become weakened, because the telephone company was in the act of putting in a line of new poles, a course adapted to remedy any existing defect. The reason for the substitution of new poles was not shown. It does not affirmatively appear that it was because the old- poles were worn out, or were regarded as unsafe. In any event, the process of substitution involved the climbing of the old poles for the purpose of detaching the wires. If the telephone company, after having stripped the old poles of its own wires (excepting the one described as “dead”), ought reasonably to have expected that some employee of the local company, in the course of the removal of the other wire, might be injured by climbing a pole which was unsafe for that purpose because of a weakness not apparent, but discoverable by methods in ordinary use, it was bound to use reasonable diligence to prevent this, a,nd if it neglected to do so it was liable for any injury resulting from such omission. We think each of these hypotheses had support in the evidence and therefore that the question of liability was rightfully submitted to the jury. It was shown that the pole that fell broke off at the surface of the ground; that it was hollow, but its outside appearance gave no indication- of this fact. A
The defendant further maintains that the evidence conclusively established that the injured workman was guilty of contributory negligence, because reasonable care for his own safety required him to' examine into the condition of the pole before climbing it, and such examination would have shown it to be dangerous. The right of a “lineman” to recover for injuries resulting from a defect in the pole on which he is working has been affirmed and denied. (Note, 15 A. & E. Ann. Cas. 598; Note, Ann. Cas. 1912B, 467; Note, 21 L. R. A., n. s., 774; Notes, 26 L. R. A., n. s., 509, 1195; Note, 30 L. R. A., n. s., 477.) In each of the cases to which the two notes last cited are appended the injured workman was employed by a company other than that owning the
A number of trial rulings are complained of. A witness was allowed to be asked whose duty it was to inspect the poles, and other similar questions. The form was objectionable, but no .prejudice resulted, for his answers as a whole showed plainly that what he was undertaking to do was to describe the usual practice as he had observed it. An objection is made to an instruction because it seemed to allow the jury to determine what the defendant’s duty was. In effect, however, the court instructed that it was the duty of the defendant to use reasonable precautions, and left the jury to determine whether certain conduct was necessary to that end, and therefore became its duty. The j ury were told that it was the duty of the defendant to keep the poles in a reasonably safe, condition. A more accurate statement would have been that its duty was to use reasonable diligence to make them safe, but the failure to observe the distinction does not warrant a reversal, for upon the whole charge it does not appear that any misconception on the part of the jury was probable. (Kamera v. Boiler Works, 82 Kan. 432, 108 Pac. 806.) An instruction was given to the effect that the company was liable if the injury resulted, without fault of the person injured, by reason of a hidden defect of which the defendant knew, or would have known if it had exercised reasonable diligence. If the
We-are of the opinion that the judgment is excessive, but not so much so as to suggest the influence of passion or prejudice. (Argentine v. Bender, 71 Kan. 422, 80 Pac. 935.) Upon a careful consideration we have concluded that $6000 is as large a judgment as should be permitted to stand under the evidence. The judgment will be reduced to $6000, and as so modified, affirmed, subject to the right of the plaintiffs to require a new trial upon the question of the amount of damages sustained, by filing with the clerk of the district court a request therefor within twenty days after the mandate of this court shall have been issued.