65 Ind. App. 9 | Ind. Ct. App. | 1917
While appellant, as appellee’s em
Appellant assigns as error the overruling of his motion for a new trial, and under such assignment challenges the sufficiency of the evidence • and the correctness of certain instructions given by the court. The facts averred in the complaint essential to ascertaining its theory and to an intelligent comprehension of the questions involved are substantially as follows: Appellant was in appellee’s employ as its local telephone manager at Pleasant Lake, in Steuben county. It was his duty to do general work for appellee in and about its exchange at Pleasant Lake, and on its lines extending thence into the adjacent territory, including erecting, dismantling, repairing and rebuilding telephone lines. In doing such work it was frequently necessary for appellant to climb poles supporting appellee’s wires. Reasonable care on appellee’s part for appellant’s safety required that all telephone poles maintained by it as a part of its lines should be solid, free from decay, and sufficiently strong to bear appellant’s weight safely when he was required to ascend such poles in the discharge of his duties. On February 17, 1913, appellee directed appellant to take down and remove a line of wire extending from such exchange through the village of Hudson. In said village the line of wire was attached to a pole in front of a residence, to which pole were attached also other wires connecting said ex
It will be observed that the negligence charged consisted in permitting the pole to become rotten, weak and defective, and in maintaining it in such condition.
The facts respecting appellant’s relation to the company and the transaction in which he was injured, as testified to by him, are substantially as follows: Appellant was fifty years old, and had been working for appellee for seven years as manager of the Pleasant Lake exchange. His duties included the building, rebuilding, repairing and dismantling of telephone lines, and looking after the lines connected with the Pleasant Lake exchange. There were about 200 phones connected with that exchange. Appellee’s central exchange and principal office were at Angola, in connection with which there was a secretary of the company and also an overseer of lines. When lines extending from the Pleasant Lake exchange were to be built, rebuilt or dismantled, the secretary or overseer at Angola issued general orders to appellant, and he thereupon proceeded to do the work. Two or three years prior to the time when appellant was injured, appellee acquired
Appellant was overseer of the lines connected with the Pleasant Lake exchange. Appellant constructed new lines and dismantled old and useless lines only on orders from the central office, but on receiving such orders he took charge of the work and saw that the orders were carried out. His orders on this occasion were general, simply that he tear down the old farmers’ line. In erecting new lines and in using old poles for that purpose, he determined their fitness, and in dismantling old lines, he determined for himself whether the poles were sound or unsound. No one on this occasion gave him any information as to whether the poles were sound, but he acted on his own judgment,, after testing them by striking against them with his hand. He had had a number of years’ experience in telephone line work, both with appellee and other companies. Appellee, in placing him in charge of the work of dismantling lines, did not direct him as to the manner of doing the work. He understood on this occasion that he was to take down the entire line, both wire and poles. He had had wide experience in climbing poles. He was familiar with the work of erecting new lines and of dismantling old lines. This line was being dismantled be
In denying the right of the employe to rely on the safe-place rule as applied to a situation wherein he is injured by reason of the defects which he was employed to search out and remedy, the court in Dartmouth, etc., Co. v. Achord (1889), 84 Ga. 14, 10 S. E. 449, 6 L. R. A. 190, said: “The physician might as well insist on having a well patient to be treated and cured, as the machinist to have sound and safe machinery to be repaired. The plaintiff was called to this machinery as infirm, not as whole. An important part of his business was to diagnose the case and discover what was the matter.” Of a similar situation, the Supreme Court in Bedford Belt R. Co. v. Brown (1895), 142 Ind. 659, 42 N. E. 359, said: “It is the general rule that it is a duty of the master to supply safe places and appliances for the service of his employes, but it is not understood that this duty requires the master to make a powder house a place of safety or to make railroading as free from danger as hoeing corn.”
Of a like situation, and in commenting on the cases, the following is said in 3 Labatt, Master and Servant (2d ed.), page 2471, note: “The inability of the servant to recover is due to his failure to show any breach of duty on the master’s part, and that the so-called doctrine of assumption of the ordinary risks is merely another way of expressing the fundamental principle that there can be no recovery unless there is negligence on the part of the master/ See, also, Terre Haute, etc., Traction Co. v. Young (1913), 56 Ind. App. 25, 104 N. E. 780; Scheurer v. Banner Co. (1910), 28 L. R. A. (N. S.), note 1216.
“Of course, as before suggested, where two or three linemen are sent out on an equal footing along a telephone line to inspect and make such repairs of defects in the poles and wires as they may discover, or which may have been pointed out to them, the master would not be liable .to any one of them for injuries sustained in consequence of said defects for the obvious reason that they would be representing both the company and themselves in such matters, and would be executing the work according to their own plans, knowledge and judgment, and not under the supervision, orders and directions of a foreman representing the master. In
Certain instructions that deal with the question of contributory negligence and also with assumed risks are assailed as erroneous. The instructions as a whole in their relation to the former question cannot be approved. The errors, if any, however, were of such a nature as to have no bearing in determining the issue of negligence charged against appellant. On the issue of negligence the jury was correctly charged. We are required to affirm the judgment on the evidence. In addition to cases cited, see Adams v. Central Ind. R.
Judgment affirmed.
Note. — Reported in 116 N. E. 600. Master and servant: liability of master for injuries received by servant in felling tree or pulling down other object, 20 Ann. Cas. 249; injuries to servant, failure to inspect, 26 Cyc 1139; warning and instructing servant, 26 Cyc 1165.