141 Mo. App. 462 | Mo. Ct. App. | 1910
Action by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the master. The answer, in addition to a general denial, contains the defenses of assumed risk and contributory negligence. Plaintiff prevailed in the trial court where the jury returned a verdict for him in the sum of $5000, and the cause is before us on defendant’s appeal.
It is argued by counsel for defendant, with much earnestness and ability that the demurrer to the evidence should have been sustained and, first, we shall address ourselves to that argument. The record pre
The injury occurred August 27, 1907, in Sedaba, during the employment of plaintiff as a lineman by defendant, a telephone company. Plaintiff, an experienced lineman, well acquainted with the duties and dangers of that vocation, was injured by the fall of a telephone pole, to the top of which he had climbed, in the discharge of duty. The pole was in one of defendant’s lines and had been in service a long time. It had become so decayed where it entered the ground that it could not sustain the additional weight of plaintiff’s body and fell with him to the ground. Defendant had built new lines in Sedalia and was prosecuting the work of removing the old lines which were known by both parties to this controversy to be in bad repair. The pole which fell with plaintiff belonged to one of these old lines and the gang in which he was working was engaged in the work of removing the wires. Plaintiff knew many of the poles were so decayed and rotten at the base that they would not support the weight of a lineman and was. aware of the necessity of an examination of each pole before an attempt was made to climb it; but he contends that in the work of dismantling the. old lines,' the duty of making such examination devolved upon and was performed by the foremen, and that linemen were not given an opportunity to make a sufficient examination of the condition of the poles to protect their safety, but were compelled to rely on the foremen for knowledge of defects discoverable only by a reasonably thorough inspection. Speaking of the duties of the foremen, plaintiff testified: “They go ahead and inspect the poles to see if
It appears the existence and extent of decay cannot always be known by merely looking ,at a pole. It must be penetrated or gouged by a sharp instrument, such as an ax or a spur with which linemen are supplied. From the observations plaintiff was able to make, he feared the pole which afterwards fell with him was not safe to climb and expressed his fear to the foreman who had ordered him to climb it. The foreman responded with an order, gruffly and decisively spoken, “Go up there, it is perfectly safe.” Plaintiff knew the foreman had inspected the pole and, relying on his judgment and assurance that it was safe, obeyed the command. On the subject of lack of reasonable opportunity allowed him to examine for himself and the compulsion under which he acted, he testified :
“Q. What was there about that pole that Clyde Dunaven (the foreman) knew that you could not have known by making a proper inspection of the same? A. Of course, as assistant foreman he had chances to go along and look at everything, and I was so busy working at something else, and I was just rushed up there and forced up that pole, and I couldn’t see just what was wrong with it. .
“Q. Was there anything about that pole, Mr: Miller, that you couldn’t have ascertained by an inspection? A. Well, if they had let me have time and I could have went back on the line both ways and seen the strain on the pole, I probably could have seen it was dangerous; but me being at work and him coming
“Q. And yon took his word for it? A. I was supposed to take his word for it or get my time.”
Plaintiff adds that he was “leery” of the pole, but thought he could execute the order without risk of imminent danger.
Negligence of defendant thus is alleged in the petition: “That on said 27th'day of August, 1907, he was working under the control and subject to the orders of one of defendant’s assistant foremen by the name of Clyde Dun aven, and that it was the duty of plaintiff to obey the orders and directions of said assistant foreman; that on said 27th day of August, 1907, said assistant foreman directed plaintiff to climb up one of defendant’s telephone poles in the said city of Sedalia, Pettis county, Missouri, for the purpose of taking the wires off of said pole; that said pole was rotten, unsafe and dangerous for him to climb, and that defendant through its agents and servants well knew that fact, or by the exercise of reasonable diligence said defendant or its agents and servants might havd known it; that said assistant foreman assured plaintiff that it was perfectly safe to climb up said pole, and that there was no danger whatever of said pole breaking by reason of plaintiff’s climbing the same. Plaintiff states that he obeyed the orders of defendant’s assistant foreman, and did climb said pole as directed by said assistant foreman to a height of about eighteen feet, when said telephone pole broke off about even with the ground, and the plaintiff was precipitated about eighteen feet to the ground, lighting upon his feet with great force, causing concussion of spinal cord, with resulting congestion of his lower nervous system, and bruising plaintiff’s feet, lacerating the tendons and bursting the nerves in plaintiff’s heels.
“Plaintiff states it was the duty of defendant to
“Plaintiff states that the breaking of said telephone pole as aforesaid and the injuries received by him as aforesaid were not caused by any fault or negligence of this plaintiff, but that plaintiff’s injuries were caused by the faults and negligence of defendant’s assistant foreman in ordering and directing this plaintiff to climb said pole as aforesaid.”
The evidence of defendant presents the facts in an aspect entirely different from that of the. foregoing statement, but as we remarked at the outset, it is our duty in passing on the demurrer to the evidence to consider the facts from plaintiff’s viewpoint and we do not consider it necessary to encumber this opinion with a recital of defendant’s evidence.
In the performance of their duties, linemen are compelled to work at the tops of poles, and it will hardly do to say the company owes a lineman the duty to furnish him a safe pole upon which to work. When the company exercises reasonable care in the selection of a pole, and in its installation in a lead, it discharges its duty, and thereafter, the linemen sent to the top of a pole to make alterations or repairs ordinarily must examine for themselves to ascertain if the pole and its appliances are in a safe condition. A servant always will be held to have assumed the inherent risks of his employment, and it is well settled he cannot hold his master liable for an injury inflicted on him by the very defect he is employed to remedy.
In Roberts v. Telephone Co., 166 Mo. 370, the line
In Junior v. Electric Light Co., 127 Mo. 79, cited by defendant, the lineman working on a pole failed to use rubber gloves and was injured by coming in contact with a defectively insulated live wire. Held, “He assumed the risk of handling these wires charged with electricity. The employment was very hazardous and inherently dangerous in its very nature, but he undertook it with knowledge of its dangers, and he was bound to exercise care to avoid the consequences. Linemen were the only employees of defendant who went on the poles and handled, connected, and repaired the wires thereon and the only employees who had an opportunity to inspect and know the condition of the wires.”
The doctrine of these cases was applied by the Supreme Court in Epperson v. Cable Co., 155 Mo. 346.
In Sias v. Lighting Co., 50 Rep. 554 (78 Vt. 35), as in the present case, the lineman was injured by the
To the same effect is the decision of tbe Supreme Court of Errors of Connecticut in McGorty v. Telephone Co., 38 Atl. 359 (69 Conn. 635), where it is said: “If tbe accident occurred through tbe negligence of any person, it urns through tbe plaintiff’s own fault.
The Supreme Court of Minnesota said in Saxton v. Telephone Co., 84 N. W. 109 (81 Minn. 814): “The fact that the foreman of the work knew that this .particular pole was defective and failed to inform plaintiff thereof, is not important. Plaintiff knew and well understood that the poles were being taken down because of their defective condition, and the burden to ascertain the nature of the defects and the dangers incident to the work was assumed by him.”
The same court in Broderick v. Railroad, 77 N. W. 28 (74 Minn. 168), in a case where a lineman was injured by the fall of a decayed pole, applied the rule that “A servant cannot recover for injury caused by the very defect he was employed to repair.”
In McIsaac v. Lighting Co., 51 N. E. 524 (172 Mass. 89), another case of injury caused by the fall of a rotten pole, the Supreme Judicial Court of Massachusetts held: “We think that one of the most common and obvious of these (risks) in reference to which both he and his employer must have been presumed to have contracted when he entered the defendant’s service, was the risk that some pole of uncertain age might break and fall when a lineman was working upon it, if he did not take measures to ascertain its condition before going upon it. All the evidence tends to show that, in the ordinary course of business, the linemen, who are often expected to work alone without supervision, as the plaintiff was working at the time of the accident, would examine the poles for themselves, so far as they considered it necessary to do so for their safety. They easily could make any necessary tests to ascertain the condition of the poles as to soundness,
Reference could he made to numerous other cases of like import but those from which we have quoted are sufficient to establish the rule that a telephone or telegraph company in the discharge of its duty to furnish its servants a reasonably safe place in which to work is not bound, before sending a lineman to work on a pole which has been in service long enough to be affected by decay to send another servant to inspect the pole, but ordinarily is justified in relying on the lineman making his own inspection; and that where the lineman is given reasonable opportunity so to do, he must examine for himself if he would remain within the bounds of reasonable care. Given such opportu: nitv by the master, the lineman assumes the risks of injury arising from the natural decay of the poles and their appliances because such risks are inherent in the employment.
But the evidence of plaintiff distinguishes his case from those to which we have referred in a respect most vital. He was not permitted by defendant to inspect the pole for himself but was forced by the orders of the foreman to climb it without such examination, or else to lose his job. The foreman, who was defendant’s vice principal, performed the duty of inspection, and compelled plaintiff to rely' on his performance of that duty. There is nothing in the authorities to preclude a master from taking to himself the discharge of a
We do not sanction the view that plaintiff was guilty in law of contributory negligence. The evidence presents his conduct as an issue for the jury to determine. While it is true the casual inspection he was able to make caused him to doubt the safety of the pole, still, knowing that the foreman had made an inspection, he was justified in relying on the assurance of safety given him by the foreman, unless the danger was so obvious and imminent that a reasonably prudent man in his position would refuse to encounter it. There is room in the evidence for a reasonable inference that the danger was not of the character just described and, as we have said, the question was for the jury to decide. The demurrer to the evidence was properly overruled.
The first instruction given at the request of plaintiff is as follows: “The court instructs the jury that if they believe from the evidence that the defendant company, through its assistant foreman, directed plaintiff to climb a telephone pole in the performance of his duties as such employee, and that said telephone pole was at the time rotten, unsafe and dangerous, and that defendant knew the unsafe condition of said pole, or by the exercise of reasonable diligence the defendant might have known that said pole was unsafe, and that in consequence of such unsafe condition of said
Defendant’s objection to this instruction is well grounded. The hypothesis on which a verdict is directed omits the all important fact that plaintiff was not suffered to examine the pole for himself, but was compelled to rely on defendant’s inspection. As we have shown, plaintiff is not entitled to recover except on the theory that he was relieved of the duty of inspection. An instruction which assumes to cover the whole case and directs a verdict for the plaintiff, to be free from prejudicial error, must contain in its hypothesis all of the facts elemental to the cause of action. We do not find the error in this instruction, which we class as highly prejudicial, cured by instructions given at the instance of defendant. Plaintiff’s instruction on the measure of damages is subject to the objection urged against it by defendant, but since the case must be remanded on account of the error in the first instruction, we shall not discuss the error last mentioned, as we assume that plaintiff, having his attention called to it, will not repeat it.
The judgment is reversed and the cause remanded.