103 Minn. 432 | Minn. | 1908
(after stating the facts as above).
It is alleged in the complaint that the defendant was negligent in failing to furnish Donahue with a safe place to work and with proper instrumentalities, and to instruct and warn him of the dangers of the service he was called upon to perform. Plaintiff’s case rests upon the allegations: (1) That Donahue was an inexperienced workman, and was put at work which was more hazardous than that for which he had been employed, without proper instructions; (2) that the usual way of measuring the height of wire above the ground was by means of a tape and wire hook attached thereto, which was slipped along the wire from the hole to the point measured; (3) that pursuant to this custom, under defendant’s directions, the lineman, Ripsom, climbed the pole with the tape and hook attached to make the measurements, and that Donahue stood near the foot of the pole holding the tape, with the intention, as he had been directed to do, of slipping the same along the wire to a point immediately above where the hole was to be dug, and then making the measurement; (4) that Donahue did not know that the current was on the power company’s wires; (5) that Donahue was directed to make the measurement with the tape in question in the manner described; and (6) that Donahue did not know that the tape was a conductor of electricity, which fact was known to the defendant.
The record fails to disclose any evidence which even tends to support á single one of these allegations, and the plaintiff is driven to rely upon a charge of negligence which is not alleged in the complaint. It is contended that, regardless of all these matters, the defendant is liable because the foreman, Johnson, knowing that the current was on the power company’s wires, stood by and failed to warn Donahue and direct him to drop the tape. Leaving this claim for the present, we will examine the evidence bearing upon the allegations of the complaint.
1. Donahue was a man of mature years, who had been engaged in similar work for at least fourteen years. He had been working
Johnson was called by the plaintiff, and cross-examined under the statute; but his evidence in this respect is undisputed. He testified that, when he saw Ripsom and Donahue preparing the tape line, he said to them, “What are you going to do?” They were standing right alongside of me, about four or five feet away from me. * * * They said they were going to measure the pole. I thought they were going to measure that new pole that was lying on the ground. Instead of that, why, they walked over to this pole where the accident happened. * * * They walked half way over to the pole, and I says, “What are you going to do?” They says, “We are going to measure that pole.” I says, “Never mind, that pole don’t have to be measured.” * * * And Donahue turned around, kind of laughing at me, and he walked over towards the pole. Ripsom got over towards the pole with his — I don’t know if it was the right or left — ■ foot on the pole. I says to him, “Don’t go up on the pole.” So he started off. He got half way on the pole., I called him again. I says, “Ripsom, whatever you do, don’t go up on the pole.” I says, “If you do, you will get
Again he testified: “I spoke to them again when Ripsom got •over to the pole. He stuck his foot on the pole, and was going to start to go up the pole. I spoke to him, and Í says, ‘Stay off that pole.’ So he started up, got half way up the pole, and I spoke to him again. I says, ‘Come off that pole.’ I says, ‘If you don’t come •down, you will get killed.’ ”
The witness Brickley testified that as Ripsom started up the pole, he said to him: “ ‘Ripsom, I wouldn’t go up that pole if I was you.’ He never said anything, and he went up a little farther, and I says: ‘I wouldn’t climb that pole if I was you. I would wait until Hilton comes out; for he is going to bring his test set, and tell them when to shut the power off.’ He paid no attention to me, and he got up a little farther, and I says, ‘If you go up that pole you are all insky,’ and he turned around and kind of laughed at me.” Donahue was then standing twenty or twenty five feet from Brickley, and must have heard all that was said. There can be no reasonable doubt of it. The witness Montgomery testified that he heard Johnson and Brickley tell the men to “keep away from that pole.”
Johnson was the foreman, and the men should have obeyed him. His statements were certainly sufficient to warn them of danger and relieve the defendant from responsibility for the results of their action, unless there was hidden danger which was known to Johnson, and not to Ripsom and Donahue. The danger was from the current in the power company’s wires, and a reasonably prudent man would have ascertained whether it was in fact on or off before taking
There is no direct evidence that any one knew that the tape was shot through with fine metallic wires. Upon the base of the tape, on the last part which would leave the box when it was unrolled, were printed the words “metallic tape.” The metallic fibers were visible upon even a slight examination. It certainly would not have been a reasonably safe appliance to furnish to the men for use in the way it was being used by Ripsom and Donahue. The tape belonged to a workman named Montgomery, and for a time was used by him in measuring holes. One day Johnson borrowed it, and after he got through with it put it in the tool box, where it remained, and thereafter was used by the men in and about the construction work. It
2. Plaintiff cannot recover on the so-called subsequent negligence of the defendant in failing to order Donahue to drop the tape after Ripsom started up the pole, if for no other reason, because the facts are not pleaded. The complaint' does not allege any negligence in this respect. Connelly v. Minneapolis Eastern Ry. Co., 38 Minn. 80, 35 N. W. 582; Morrow v. St. Paul City Ry. Co., 65 Minn. 382, 67 N. W. 1002; Jemming v. Great Northern Ry. Co., 96 Minn. 302, 305, 104 N. W. 1079, 1 L. R. A. (N. S.) 696.
3. As the plaintiff had failed to prove the case which he had pleaded, the trial court should have directed a verdict in favor of the defendant; and a new trial was properly denied after the jury had
The fifth assignment of error, based upon the ruling which sustained the defendant’s objection to a question which asked the witness to state the customary method of making measurements, was well taken. The plaintiff was claiming that it was necessary to measure the height of one of the poles in order to carry out the instruction to notch the pole which was then lying on the ground; but the witness had already testified that he did not know that it' was customary to measure the height in any other way than by observations. The witness had also testified that he did not know what the custom was as to obtaining the height of the wires, when new poles were 'being set under conditions such as were being considered. In view of the condition of the entire record, it is evident that the plaintiff was not prejudiced by the ruling which prevented the witness from answering the particular question.
The seventh, eighth, ninth, tenth, and eleventh assignments are predicated upon rulings which prevented a witness from answering questions designed to establish the necessity for making the measurement ; but it was not, under the circumstances, for Ripsom and Donahue to determine this question of necessity. That rested with the foreman, and he expressly ordered the men not to make the measurements. The sustaining of the objection to the question referred to in the twelfth assignment was in no way prejudicial to the plaintiff. All that the foreman, Johnson, said had been detailed over and over by witnesses called by the plaintiff.
The order of the trial court is therefore affirmed.