155 F. 256 | U.S. Circuit Court for the District of Massachusetts | 1907
This case now comes before the court upon a motion by the defendant for a new trial, upon the ground that the
The plaintiff was an employé upon the lines of a telephone company. He had been a foreman, and had experience in the class of work committed to him. In the course of his employment he was required to climb a pole on which were telephone wires, and also highly charged wires of the defendant company. The insulation had been worn from one of the defendant’s wires, and the wire had become an object of danger. It appears from the plaintiff’s testimony that he approached the pole, in the ordinary course of his employment, walking upon a wall on the side of the road; that it was impossible for him, from the wall, to detect the absence of insulation on the wire, or to see a burnt place which the uninsulated wire had made upon the pole. There is evidence, however, that by going a little distance into the road he might have seen the defective conditions. He did not see them; but proceeded to climb the pole, having his right hand around the pole and sliding it up the pole as he ascended. With his left hand he was preventing the kinking of the cable which other telephone men were running from pole to pole. According to his testimony, he had ascended some 24 or 25 feet when he felt the pole sway as if the men working on the cable had given a sharp pull, and that was the last he knew. A biirn was apparent upon the plaintiff’s right wrist. His shoe was produced in court, and appeared to have been burned through, under the climbing spur. There was evidence tending to show that the pole was swayed by the pulling of the cable by the telephone linemen.
Plaintiff admitted that he had been instructed generally that, before climbing a pole, he should see that such pole was safe; but he-had never worked near this pole before, and his attention had not been called'to the defective wire or to the burn on the side of the pole. He had seen other workmen going up and down the pole in safety. He was called upon to climb it in the course of his business. He approached it in the way I have described, and did not, as a matter of fact, see the defects, either before beginning to climb the pole or during his ascent. It is earnestly contended by the defendant that, if he had gone a little distance into the road, he could have seen the defective, conditions, and that, if he had been in the exercise of due care during his progress up the pole, he would, have seen those conditions.
This was the second trial of the cause. At the first trial the plaintiff obtained a verdict. Judge Brown, the learned judge before whom the cause was tried, refused to set that verdict aside as being against the law and the evidence. He did, however, grant a new trial on the ground of excessive damages, unless the plaintiff should remit a certain sum. In refusing to grant a new trial for errors in law, he. uiade a comprehensive reference to the testimony which was before 1 the jury on that trial. He also commented on Chisholm v. New England Telephone & Telegraph Co., 176 Mass. 125, 57 N. E. 383, and Law v. Central Dist. Printing & Telegraph Co. (C. C.) 140 Fed. 558, I agree
After Judge Brown’s decision in the matter of a new trial, this case went to the Circuit Court of Appeals. In speaking for that court, Judge Aldrich said:
“Knowledge that wires are li¿ble to get out of repair, and when out of repair that they are dangerous to life, is something entering into the question of care as it applies to both parties. * * * There is no evidence that he saw the lack of insulation. It is only argued that he ought to have seen it. This being so, and the unforeseen swaying of the pole being the probable cause of the contact, it reasonably, we think, became a question for the jury whether, under all the circumstances, the plaintiff exercised the care of a prudent man in attempting to do what he did.”
The testimony upon which the jury found this verdict is not the same as that upon which the Court of Appeals passed in arriving at their conclusion; but, in my opinion, it is not so different as to require a different rule of law. For the purposes of this case, I must assume that the decision which I have cited states the doctrine of the federal courts upon this subject. In accordance with Judge Aldrich’s opinion, I think this court must say that the question of due care of the plaintiff in a case like this must properly be left to the jury to decide under the special circumstances of each case. I decline to grant a new trial for error of law.
The defendant contends, also, that the damages are excessive. The date of the injury was August 18, 1905. Before that time the plaintiff was in good physical condition. He has been sick ever since. The evidence shows that he received nearly 2,000 electric volts, and fell at least 25 feet, and that from that time he has suffered. He has now the pained and pinched appearance of a sick man. The testimony tends to show that there is still inflammation, that there are adhesions in the vicinity of the liver, and-that there is some evidence of neurosis. Some
The motion of the defendant for a new trial is denied.