164 Mo. App. 126 | Mo. Ct. App. | 1912
Plaintiff was what is known as a “line man” in the defendant telephone company’s, employ in the city of St. Joseph, Missouri. He climbed a pole to which defendant’s wires were attached, for the purpose of cutting “dead wires.” When he cut the wires the pole was left without some-of its support and fell with plaintiff to the ground, injuring him severely. He recovered judgment in the trial court.
Defendant’s chief objection is that the case made-for plaintiff by the evidence in his behalf, is insufficient in law to support a judgment. It appears from the testimony introduced by plaintiff that defendant, operated a telephone line in the city of St. Joseph,. Missouri, and that he was a lineman of ten years’ experience and had been working for defendant for several months. That on the morning he was hurt, the defendant sent him and another lineman and a ground-man (a man who worked on the ground) to cut out,, or cut off of the poles, what is called “dead wires.” The other lineman was in charge or control of the
In many of tbe states tbe rule is stated, absolute, that a telephone company is not expected to have inspectors of its poles other than the linemen themselves. [Sias v. Consolidated Lighting Co., 73 Vt. 35; McIsaac v. Northampton Electric Lighting Co., 172 Mass. 89; Tanner v. New York, N. H. & H. R. A., 180 Mass. 572; DeFrates v. Chicago Union Tel. Co., 243 Ill. 356; Krimmel v. Edison Illuminating Co., 130 Mich. 613; Lynch v. Saginaw Valley Traction Co., 153 Mich. 174; Griffin v. New York Tel. Co., 125 N. Y. Supp. 642; Saxton v. Telephone Co., 81 Minn. 314.]
Other states make no distinction between telegraph and telephone companies and their linemen, and any other relation of master and servant and, except where the situation and nature of the service may be different, require the master in such case to furnish the servant with reasonably safe appliances and a reasonably safe place in which to work. In an elaborate opinion by Woodson, J., in which there is a full examination of the authorities, wherein all phases of the question are discussed, this state is placed in the latter class. [Corby v. Telephone Co., 231 Mo. 417.] In speaking of directions given by the foreman to the linemen in that case, the judge said that “the telephone company owed them the same duty to inspect and furnish them with a reasonably safe place in which to work that all other masters owe to their servants in that regard.” And further, that: “There is not a whit’s difference in principle between a telephone company and any other master in that regard.” And that telephone companies (italics ours): “Owe the same duty to their employees that all other masters owe to their servants under like circumstances and conditions.”
Excepting that the same character of work was being done, the foregoing facts bear little resemblance to those we have stated in this case. There is no pretense that plaintiff’s foreman made any inspection and the face of the record shows that plaintiff knew he had not. In this respect the case is wholly unlike that of Miller v. Tel. Co., 141 Mo. App. 462, where the foreman declared the pole to be safe and for the plaintiff to climb it. So, likewise, it is apparent that plaintiff knew the defendant had not a separate force of inspectors, for he had been working for defendant for more than five months, and he stated he knew it did not inspect. In this case, as soon as they came to the place to begin work and before the foreman was out of his presence, he sent plaintiff to the next pole further on, telling him not to cut the wires until after he had cut, as the pole he was going to climb looked as though it might not support him. Plaintiff’s words were, “and he (the foreman) told me to go down to the corner and cut what he cut and wait till he got his cut for the pole looked kind of weak he was on.” Prom this it is apparent that plaintiff knew the fore
Plaintiff’s nine or ten years’ experience as a lineman had taught him, as he himself stated, all about the liability of poles to decay next to the ground, and there was no excuse for him to say, and he did not say, he expected and relied upon an inspection by the defendant, and his own acts demonstrate that. So the words of the foreman accentuated it when he expressed misgivings about his own pole; and when he sent plaintiff alone to the pole further on, it was no more than if he had sent him out from the company’s office. The circumstances point to only one reasonable conclusion; that is, that plaintiff was to look out for himself. The direction of the foreman to- go to that pole was in effect a direction to do his own inspecting independa ent of any reliance on the foreman. If the foreman had said to him, as he started, “I have not inspected that pole,” it would have been no more warning and have added no more knowledge than plaintiff already had; and therefore it is not a matter of wonder that plaintiff does not say lié relied upon, or expected’, an
So it seems to us to be clear that if we refuse to make exceptional rules for governing the conduct of telephone and telegraph companies and their linemen, and apply to them the ordinary obligations and mutual duties between master and servant in ordinary cases, in similar circumstances and conditions, as held and applied by the Supreme Court in the Corby case, we must hold that the evidence in plaintiff’s behalf shows him to be without legal standing and the judgment should be reversed.