140 F. 558 | U.S. Circuit Court for the District of Western Pennsylvania | 1905
The jury by their verdict found the defendant company guilty of negligence, and absolved the plaintiff from blame; but the question is whether this was justified by the evidence, which is now to be determined on the points of law reserved. There is no controversy over the material facts. On the occasion of the accident the plaintiff was in the employ of the defendant as a cable splicer, having been advanced to that position by reason of his previous good record as a lineman, at which work he had been engaged for three or four years. In that capacity he was required to climb the poles of his own and other companies, moving among and about the various electric wires and appliances upon^them, and making repairs to the telephone cables wherever they were found necessary. On the day in question he was ordered by the defendant company’s test-man to go down along Iron street, in the city of Johnstown, Pa., where he was then stationed, and fix up a cable somewhere out in that direction which was supposed to need mending by having been mashed against
That the situation presented a peril, except as care was exercised to observe and avoid it, may be conceded; but the defendant company was not an insurer, and that of itself does not make out a case. It must still be shown that the dangerous condition resulted from the neglect of some duty charged on the defendant by its relation to the plaintiff, or there can be no recovery. The case is clearly to be distinguished, by reason of this relation, from Dwyer v. Buffalo Electric Co., 20 App. Div. 124, 46 N. Y. Supp. 874, which is relied on bv plaintiff’s counsel, where the defendant was held liable for a shock received by a lineman in taking hold of an iron bracket supporting a cross-arm, which was in contact with one of the defendant’s electric
In discussing this, there are some things which clearly .may be •eliminated. It cannot be said, for instance, that the plaintiff was sent without warning to a place of known danger. The fact is that he was given no specific instructions, except to go out in a certain direction -and look for damage to the sheathing of the cable, which had been reported by one of the linemen. There was nothing to indicate, by a •disturbance at the central office, that there was any crossing of wires •or interference of currents, so as to suggest a danger and call for a warning against it. The injury to the cable was external and structural, and'the plaintiff was expected himself to locate and fix it. That he went up the particular pole that he did, and not the one beyond, which he might have done and escaped, was thus a matter of his own choice.
Neither can it be successfully urged that the defendant company •ought by inspection to have known of and removed the danger. Both the plaintiff and his brother testify that it could not be seen from the ground that the electric light wire was in contact with the guy wire; and, if that be so, it is difficult to understand how the company could be expected to discover it, except by a character of examination which it is not the custom, nor is it practicable, to make. Ordinary care is all that is called for, and that is largely measured by what has been found necessary by the experience of the business; and it is undisputed that inspectors make their observations from the ground, and are not supposed to climb the poles unless there is something particular and special calling for it. The fact is that to charge the defendant company with failure to discover and remedy the crossing of these wires is to demand of it a higher degree of circumspection than the plaintiff himself is willing to be held to. Flood v. Western Union Telegraph Co., 131 N. Y. 603, 30 N. E. 196. For, in order to escape the charge of heedlessly running into manifest danger, he is compelled to main
This also disposes of the question whether the defendant is chargeable with notice, and so with negligence, by reason of the time which must have elapsed since the electric light wire had fallen from the bracket. The evidence is that the insulation was off at the point of contact, and that the pole had been burned into to the depth of an inch and the length of five inches. It was also testified that no rain had fallen in that locality for at least six days, and that, while the pole might have been burned in the way described in a single night if it had rained, it could not have been, during the period mentioned, if it were dry; from which it is argued that the situation had existed as it stood for upwards of that time. But time, under the circumstances, does not enter into the problem. It figures only where the difficulty is such that it might have been discovered, and so should have been, by the exercise of reasonable care and diligence. Where, as here, the situation was one which ordinary observation would not disclose, as the plaintiff’s own testimony establishes, the time for which it had existed is clearly immaterial.
The plaintiff’s case is therefore brought to the final position that the falling of the electric light wire, by which the danger was created, was the result either of an originally negligent construction or a subsequent negligent maintenance, for either of which, as it is contended, the defendant was liable. In two respects it is claimed that the telephone line was not what it should have been at the point of the accident. In the first place it is said that the telephone pole never should have been set up between the electric light wires, but on the outside of them, by which they would both have swung clear of it, and in the next place, if this precaution was not observed, that the light wire which made the trouble should have been fastened to a cross-arm, and not a bracket. By the former arrangement, as it is contended, there would have been no possible contact with the telephone lines or equipment, which would have beén entirely to one side of the light wire; and by the other, if the electric light wire became unfastened and fell, it would be caught by the end of the cross-arm and so not get down onto the guy wire, as it did. As held at the trial, it is unimportant whether the telephone or the electric light company was originally responsible for the interlocking of these lines; that is to say, whether the telephone company came along after the electric light wires were up and set up its pole between them, warding off the one by fastening it upon a bracket, or the electric light company, which was first upon the ground, in reconstructing its lines strung the wires as they were found and nailed up the bracket. By whichever this was done at the outstart, as a matter of subsequent maintenance, both were responsible for its continuance, and, if that was negligent, either may be held.
The opinion was expressed by a number of witnesses that a cross-arm was safer than a bracket, and that it was the only proper con
But, passing this by, as well as the counter suggestion, that in falling from a cross-arm there would be a greater sag, which would make it obvious that something was out of order, all of these matters become irrelevant in the face of the real test, and that is whether the construction, which is complained of, was usual and ordinary. An employer is not called upon to exercise the highest, but only reasonable, care, nor to make use of the latest and most approved methods and appliances, but those which the custom of the business justifies. Whatever is lacking in these must be regarded as falling within the risks assumed by the workman in accepting employment. The rule, which is the same with regard to machinery as to places (Patton v. Texas & Pacific Railroad, 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361), is thus stated in 20 Am. & Eng. Encycl. Law (2d Ed.) p. 76:
“It is not the duty of the master to furnish the best machinery and appliances obtainable. His duty is discharged when he furnishes machinery and appliances which are reasonably safe and suitable for the intended use and of the character ordinarily in use.”
And, again (page 70) :
“Where defective construction or maintenance of place of work is charged as the cause of the injury, the defendant may show that such place was constructed and maintained according to the methods in common use by other companies.”
“The unbending test of negligence in methods, machinery, and appliances,” says Mitchell, J., in Titus v. Railroad, 136 Pa. 618, 20 Atl. 517, 20 Am. St. Rep. 944, “is the ordinary usage of the business. No man is held by law to- a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way, for which liability shall be imposed.” If this be so, it is idle to contend that the use of a bracket, instead of a cross-arm, in the present case, was negligent. No fact is more completely proved than that this has been a common construction, where as here, an electric light wire is merely to be warded off or kept clear
An adverse conclusion must also be reached on the question of the plaintiff’s contributory negligence. Ordinarily, no doubt, this is for the jury, dependent, as it is, not only upon the facts, but the inferences to be drawn from them. Coolbroth v. Pennsylvania Railroad, 209 Pa. 433, 58 Atl. 808. But here the facts are undisputed, and there is but one conclusion to be deduced; for, disguise it as we may, the plaintiff is seeking to hold the defendant liable for that which was in reality the result of his own heedless and unthinking act. Aside from the inconsistency, already adverted to, of charging the defendant with negligence in not anticipating and providing against a situation into which he himself advanced in broad, daylight, it is manifest, upon the most cursory consideration, that ordinary care was lacking in the course he took. It is undoubtedly to be taken as true that the contact of the electric light wire with the guy wire was not observable from the ground; nor that the insulation was gone, being either burned off or abraded; nor was there any particular warning, according to the evidence, in the circumstance that the bracket was vacant. But, whatever allowance is to be made for these things, they disappear after the plaintiff had climbed the pole and had the situation immediately before him. Had he taken pains to look, he could not fail to have seen, what must have been within a foot of his eyes, that the electric light wire, which was plainly distinguishable by its size, was down against the pole, in contact with the guy wire, which it thereby of necessity charged with its high tension current; and yet, notwithstanding this, he reached out and took hold of the guy wire to help himself up onto the cable, with the unfortunate result which followed. He might just as well have taken hold of the electric light wire itself, under the circumstances, and he is chargeable the same as though he had; the two being plainly in contact. It does not do to say that the sun was in his eyes. This was his own doing, and he had no business to go up into this network of wires hampered in any such way. What he could have seen with the exercise of suitable care, he was bound to see, and is responsible as a matter of law, even though he did not. Neither is it any extenuation to say that a guy wire is supposed to be harmless, carrying no current. The liability of guy wires to become
“The fact that guy wires become from accident live wires of the most dangerous character is one unfortunately of too frequent occurrence to be overlooked or ignored in the exercise of the constant supervision which an electric system exacts, and which the public have the right to enforce.”
And this is quoted with approval by Brown, J., in Alexander v. Nanticoke Light Co., 209 Pa. 571, 58 Atl. 1068, 67 L. R. A. 475.
_ If, then, electric light companies, in their relation to the public, are to be held to the exercise of such care that this contingency shall not happen, surely those who are led by their duties up into the midst of intersecting lines and wires are called upon to recognize the same possibility and look out for it, under the penalty of being convicted of negligence if they do not.
Sufficient weight was not given by the jury to these considerations, of their conclusions must have been different, nor, for that matter, by the court, in submitting the case to them. Upon a full review of it, however, at this time, I am constrained to hold that a verdict to the contrary cannot be sustained.
The rule to show cause is made absolute, and judgment is directed to be entered for the defendant non obstante veredicto on the points reserved.
Specially assigned.
Says Bay ley, a man with 28 years’ experience in electric work, under whom as foreman all the lines in the city of Pittsburg were constructed, after stating that a cross-arm would be the best: “Q. (by Mr. Kinnear). Mr. Bayley, did I understand you to say that, if the bracket was attached to a telephone pole with other wires upon it, it would be a safe construction? A. Provided the wire was not too big for the bracket — the weight of the wire. Q. To attach the electric light line to the bracket, and an insulator on the bracket? A. Yes; provided the electric light wire is not too heavy for the bracket. Q. (by the Court). If it was fastened up there well enough, it would be all right? A. Yes; and if the wire is not too heavy. Q. It would be all right to put it on the same pole \vith other wires? A. It is done every day.”
So Thompson, one of the plaintiff’s most positive witnesses: Q. (by Mr. Balzell). Is it not a fact that you can go around the city of Pittsburg here, and see repeatedly the telegraph and telephone poles and electric light poles, and you can go into any city in this country and see done just exactly what was done up here in Johnstown, namely, the keeping away of the wire of a strange line from a pole on a curve by a mere bracket? A. That condition does exist all over the country, but there are other cities that are adopting and compelling the companies to keep the electric light wires free. * * * Q. (by the Court). Common practice would justify the use of the bracket, where it was simply intended to keep off the light wire from the * * * intervening pole? A. The common practice would, but it would not remove the danger.”
Newton, also with an experience of 0 or 10 years as lineman and line foreman, declares: “It has been a custom for years to use brackets. It is the easiest and cheapest way out. It is the most dangerous, way, but it has been a custom for years to use the bracket system.”
And even Doolittle, who will not admit that the use of brackets is a common practice, concedes that he has occasionally seen them.
Says Doolittle: “Q. (by Mr. Kinnear). In a case where a telephone line is being constructed along a street occupied by a high-tension line carrying 2.300 volts, and the line is on a gradual curve, and the telephone pole is erected on the outside [inside] of one of the high-tension lines, so that the high-tension line presses against it, if the pole, being in the same position, had been placed on the inside [outside] of the high-tension line, and by so doing the high-tension line had swung clear from the pole on the outside [inside], what would you say was the proper construction? A. Set the pole so as to swing clear of the wires is all I know of. I would put a cross-arm on and keep it clear.
So Newton testifies: “Q. (by Mr. Kinnear). In case a telephone line was being constructed along a street occupied by a high-tension electric light wire carrying 2,300 volts, and the pole erected by the telephone company was placed on the outside [inside] of one of the high-tension lines, so that the high-tension line pressed against it, whereas, if it were put on the inside [outside] of the line, inside [outside] of that high-tension line, being erected in the same place, the high-tension line to clear the pole on the outside [inside], state what is the proper construction in a case of that kind. A. I never saw the location of the works. If it is on a curve, it has to go to the curb line, and they would have to place the pole on that particular spot. Q. The question was, if the pole were in the same place? * * * a. * * * If the wire cleared the pole, there would be nothing for the telephone company