192 F. 241 | 6th Cir. | 1912
Plaintiff in error brought suit on account of personal injuries incurred while employed by the defendant as a lineman. The accident causing the injuries happened in September, 1907, and in this way: The crew to which plaintiff belonged was engaged in putting in new cross or span wires supporting defendant’s trolley and other wires belonging to its street railway system on Seventh street in Cincinnati. A new span wire had just been placed in position, being attached at either end to bolts inserted in the brick walls of buildings on opposite sides of the street, and the span wire had already been tightened by block and tackle applied thereto at the center of the street. The old cross-wire had been cut away, leaving a “tail end” a few inches long attached to the eye of the bolt on
The ground of defendant’s negligence principally relied on is the maintaining of the alleged insufficient connection of the bolt with the wall, in that the bolt neither passed through the wall nor was securely fastened therein. There was testimony tending to show that the connection in question was unsafe construction; that it was bound to wear loose on account of the constant vibration of the wire; that the best construction required connection with a pole set in the street, and if a wall connection were made, that safe construction required that the bolt pass through the wall and be held upon the inside thereof by nut and washer, or that at least the bolt connection be secured in the wall by the use of solder. There was testimony tending to show (inferentially, but not expressly) that the connection in question was not soldered, being wedged in with nails and perhaps other material. There was no express testimony of notice to the defendant of the alleged defective condition of this connection. The defendant introduced no testimony. It was, however, stipulated that the connection in question “was part of the wire system of the street railroad operated by the defendant and in place in said wall when defendant acquired said system from the owner thereof, the Cincinnati Street Railway Company, on February 21, 1901.” At the close of the plaintiff’s casé, defendant moved for a directed verdict in its favor, upon the grounds: First, that its negligence was not shown; second, that plaintiff had assumed the risk in question; and, third, that plaintiff’s own negligence contributed to the injury. Verdict was directed upon the first ground, the other grounds not being passed upon.
The pivotal question is whether there was testimony reasonably tending to show that the defendant was negligent, in maintaining the appliance in question, and in failing to discover and remedy its alleged defective condition.
The testimony as to the tightening of the new wire immediately preceding the accident was not such as necessarily to exclude a proper inference of defective condition prior thereto.
In reaching this conclusion, we have not overlooked plaintiff’s concession that tinder the doctrine in Coal & Car Co. v. Norman direction of verdict for defendant would have been proper but for the subsequent enactment of wliat is now section 6242 of the General Code of Ohio, which plaintiff contends was passed for the purpose of relieving the employé from the obligation to prove notice to the employer of the defect and absence of equal knowledge on the part of the employe. We have not felt justified in accepting this concession, and so we have not found it necessary to consider the effect of the statute referred to.
“The practice and custom under which it (the telephone company) conducted, its operations made every lineman his own inspector, and linemen were required to make such inspection and testing of poles before going on them as*246 they should deem essential to their own safety in doing the work they assumed to do.”
The questions of assumption of risk and contributory negligence were properly for the jury.
The judgment of the Circuit Court, should be reversed, and new trial ordered.