125 N.Y.S. 642 | N.Y. App. Div. | 1910
The plaintiff was employed by defendant as a “ trouble man,” of line repairer; whenever a line was found to be ■ out of order or broken down, by the operating department, the.repair department was called into a-ction^ and the plaintiff was one of the men thus employed. ■ On .the. 13th of September, 1909, one of defendant’s wires extending into the quarry of the Foss & Conklin Trap ¡Rock Company at ¡Rockland Lake fell down, and the plaintiff was sent to repair the saíne.. ¡No special directions were given ; he was-simply told that this particular Circuit was out of order and to make the necessary repairs. He says that when he arrived at the point where the wire- was down he spliced the ends, and then walked around the pole looking for cracks; that he took the end of his pliers and opened up-a hole in the pole deep, enough to enable him to drive a jackknife into it, and that he found nothing wrong with the pole; that he took the wire and climbed up about five feet and then gave the pole a shake to further test it, and then climbed to the top ; that while at the top he used some exertion to throw the wire loose from the shingles of a nearby building, and that the pole broke and. fell, throwing him into a streám -of water near at hand, producing more-or less serious injuries.
It is not disputed that the pole which plaintiff inspected fell because of a rotten condition about four to six inches below the surface of the ground, and it is the contention of the plaintiff that the defendant was negligent in not having inspected this pole prior to the ascent of the plaintiff. The defendant concedes the general. rule that it owed the duty of reasonable inspection, but it. claims to have afforded this, in that it had promulgated rules which were concededly brought to the attention of the*plaintiff, both by reason of his service of something like fourteen years, and his admission that he knew of the existence of the rules by which such inspection was provided, and that he was familiar with these rules.. These rules,, after calling attention to the desirability of the workman taking out all of the tools and appliances which he will need during the day, provided that “ Each employee shall ■ keep his tools, testing instruments, etc., in first-class condition ; ” that' “ Constant - and extraordinary care shall be exercised in all situations when an element of danger is or may be present; as when working in the vicinity of
The evidence clearly discloses that the defendant had provided all of the tools and appliances necessary to test the pole which it became the duty of plaintiff to climb in the performance of his work; he was called upon by the rules which governed his employment, and which were familiar to him, to “ carefully inspect' the same ” and satisfy himself that the same was in a sound and safe condition to work upon, and “should inspection indicate that a pole is dangerous, the work shall be deferred until the pole can be replaced or made safe.” His duty was not limited by the cursory inspection which might operate to relieve him from contributory negligence, under circumstances where he had a right to rely upon inspection by the master in the regular course of business, but was extended to that careful inspection which should disclose any defects in the pole which it would have been the master’s duty to discover by. such an inspection. He was not asked to do two things at once ; he was not asked to perform the work of repairing
The judgment and order appealed from should be reversed, with costs.
Jenks, Thomas, High and Cabe, JJ., concurred. •
Judgment and order reversed and new trial granted, costs to abide the event.