108 N.Y.S. 189 | N.Y. App. Div. | 1908
Lead Opinion
The plaintiff, an experienced lineman, was engaged at Saratoga. Springs -with one Higgs, who was defendant’s foreman, in construction work, in taking down and removing certain telephone poles which were out of use. In the absence of Higgs plaintiff climbed a pole, cut the telephone wires which connected it with the next westerly pole, the pole fell and he was seriously injured, for which the jury gave him $5,002.54 damages. It was a chestnut pole, apparently sound above the ground, but after it had fallen it was discovered that where it entered the ground, and for a few inches below, it was . rotten and punky clear through. The place where a pole enters the ground is usually the place where it is attacked by rot, and is the point of weakness to be guarded against. An inspection with a bar, a screwdriver or other iron implement crowded into the pole below the surface of the ground would reveal whether the pole were defective or not. That is the usual and only reliable, test. It
Aside from the Employers’ Liability Act (Laws of T902, chap. ■ 600) it would easily be held that the plaintiff, as a matter of law, was guilty of contributory negligence, and had assumed the risk and could not recover. Plaintiff and Higgs both knew that these poles were out of use and were being taken down for that reason. They were both present when the superintendent of the company directed them to remove the poles, blit lie gave no directions as to the manner in which they should be removed. . The pole in question leaned north towards the street at an angle of about twenty degrees; it was guyed from the south by a wire fastened upon the pole about eighteen or twenty feet from the ground. There were also fastened to the pole two telephone wires running westerly along the south side, of Division street, where they were fastened to an electric light pole. There Avas a fire alarm wire attached to the pole, running northwesterly about one hundred and twenty feet across the street and there fastened to another pole. There were some other Avires attached to the pole, Avhich had formerly connected it with the hospital on the north side of the street, but they had been cut near thejiospital by the plaintiff and lay upon the ground near the
' Higgs swears that after he climbed the pole and they went to dinner he told the plaintiff to go to the pole and wait for him but not to climb it, and he would get a rope to hold it while the wires were being cut and with which they could lower it to the ground, but that when he returned to the pole he found it down with the plaintiff injured. The guy wire and the fire alarm wires were found broken after the accident.
In Guilmartin v. Solvay Process Co. (189 N. Y. 490) the court says: '“ Therefore, the question in any case brought undér the statute is not whether the negligent act is a detail of the work, but whether it is a detail of the superintendent’s part of the work or of that of the subordinate employees and servants.” The only act done by Higgs which can be claimed to be an act of superintendence is the direction to remove the two wires from the pole. But he gave this direction to an experienced lineman whose business .it was to climb poles, take off and put on wires and take down poles. Both the plaintiff and Higgs knew that the proper way was to cut the wires before the pole was taken down ; both knew where the weakness of the pole existed, if anywheres, and both knew the usual test and the importance of making such test before climbing the pole. It was unnecessary for Higgs to tell the plaintiff how to climb the pole or
The plaintiff suffered a severe injury while in the defendant’s service, hut that does not make the defendant liable. He received the injury in performing-his ordinary duties in a special employment, in which he was an expert. If plaintiff had been working with other men not familiar with the business, it would have been his duty to have informed them of the danger and of the test to discover the .defect, or to have made the test himself. He was with Higgs and knew that Higgs had not made the test. Both men had equal knowledge; both men were*equally skillful in the business, a"nd if Higgs, was negligent'it is difficult to see how the plaintiff, can escape a like imputation. Unless'the employer is the absolute guarantor and is liable for any injury which the employee receives in his service, it is difficult to see how defendant can be held liable in this case. While the rules as to contributory negligence remain in force this verdict should not stand upon this evidence. The burden of proof .rested upon the plaintiff to show absence of contributory negligence upon his part-. It has never been determined that the expert .woodsman who, after climbing a tree, deliberately and knowingly cuts off the limb upon which he stands,, can blame the
The judgment and order should be reversed as against the evidence and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Cocheane, J., dissenting in opinion.
Dissenting Opinion
The disposition of this case, I think, ignores the proper theory applicable thereto. The cause of the falling of the" pole was its rotten condition below the surface of the ground. Plaintiffs right to recover does not rest on the negligence of Higgs, the foreman, as is assumed in the prevailing opinion, but on the duty of the defendant to have inspected the pole. (See McGuire v. Bell Telephone Co., 167 N. Y. 208; Riker v. New York, Ontario & Western Railway Co., 64 App. Div. 357.) Such duty was primarily with the defendant, and plaintiff had a right to assume that it had been performed. Defendant might have devolved that duty on Higgs or plaintiff or both, but that it. did Hot do so is undisputed and defendant does not and cannot claim to have done so. Hence the question of. assumption of risk by plaintiff does not arise. The pole was not being removed because it was worn out but because defendant was changing its system and the circumstance of removal did not; therefore, put plaintiff on his guard as to the hidden danger that caused the accident.
I advise an affirmance of the "judgment.
Judgment and order reversed as against the weight of evidence and-new trial granted, with costs to. appellant to abide event.