83 Neb. 735 | Neb. | 1909
Lead Opinion
This action was brought in the district court for Douglas county against the defendants Nebraska Telephone Company, which, for brevity, we shall designate the “Telephone Company,” and the Omaha Electric Light & Power Company, which we shall designate the “Light Company,” to recover for personal injuries which plaintiff claims to have received on or about June 28, 1906. The allegations of the petition substantially are that plaintiff was employed by defendant telephone company as a “ground man”; that his duties were to assist in stringing cables along the street for the purpose of suspending them to upper ends of the poles; that he was not acquainted with the danger attending the work of hanging the cable, and only consented to perform that work temporarily; that this work necessitated his working at a height of about 30 feet from the ground; that the telephone company negligently and carelessly provided him with a metallic car for the purpose of doing said work, well knowing that the same was not a safe and proper seat for performing said labor when said seat or car was likely to come in contact with the live wires of the light company where the same “intersect each other”; that defendant telephone company “negligently and wilfully required plaintiff to work upon said car, without it having any covering, insulation or protection whatever to prevent plaintiff while working on the same from coming in contact with any live wires which might be allowed to remain, out'of repair, and near said telephone wires”; that while performing said work he was proceeding north on Twenty-fourth street, and as he approached certain cross-wires of the light company,
There is really no conflict in the evidence as to any of the matters inquired of on the trial. It shows that at the time plaintiff received the injuries complained of the defendant telephone company was inclosing its wires along Twenty-Fourth street in a lead cable, about l-J inches in diameter. This lead cable was suspended from a strong woven wire called “the messenger,” and ran parallel with and about six inches below the messenger wire, being supported at short intervals by wire hooks, somewhat in the form of a figure 8, so that the cable would be permanently suspended from and supported by the messenger wire. It would appear that the linemen who had strung the cable had placed the wire hooks in position, but had not securely fastened them, and at the time of the injury it was plaintiff’s work to pass along that wire and with a pair of metal plyers securely fasten the hooks. In order to do this he was seated on an iron saddle with an iron frame extending to the top of the messenger wire and attached to a wheel which ran upon the wire. The saddle was provided with a wooden seat. After fastening a hook he would pull himself along to the next and repeat the operation. The telephone wires ran north and south along the west side, and the electric wires of the light company along the east side, of Twenty-Fourth street. At the intersection of Twenty-Fourth and Grant streets one or more of the electric light wires crossed Twenty-Fourth street, some of the witnesses say diagonally, and passed under the telephone wires, plaintiff was working northward. When he had reached, or nearly reached, the electric light wires, he turned partially around in his saddle to remedy some defect which he had discovered in the fastening which he had just passed, or
Defendants introduced in evidence as exhibit 3 an accepted notice to linemen, an exact copy of which will be found set out in the opinion of Mr. Commissioner Duffie in Ault v. Nebraska Telephone Co., 82 Neb. 434, and which, on account of its length, we will not repeat here. Defendants also introduced in evidence as exhibit 2 an application of plaintiff for employment by defendant telephone company. When plaintiff rested, the defendant telephone company moved the court to direct a verdict in its favor, basing said motion upon exhibits 2 and 3, above referred to, which motion the court sustained. This was error. The application, exhibit 2, corroborates plaintiff’s contention ’that, when he was employed by the defendant telephone company, it was as a ground man. Exhibits 2 and 3 having been both signed by plaintiff on the same day, viz., February 20, 1905, it is evident that exhibit 3 was handed to plaintiff at the same time that he filed with the defendant telephone company exhibit 2. Conceding that exhibits 2 and 3 would be binding upon plaintiff, they could only be binding upon him in his employment as a ground man. Plaintiff might be willing to assume all responsibilities said to be placed upon him by exhibit 3, while working as a ground man, but be unwilling to assume such responsibilities while suspended in the air 30 feet above the pavement, and it may well be assumed that when he commenced the work of “riding the cables,” about two weeks prior to June 28, 1906, all recollection of papers which he had signed on the 20th of February of the year preAdous, a year and four months, liad passed from his mind. The evidence shows that, prior to commencing work for the defendant telephone
But there is another reason why exhibit 3 should not have been held as a matter of law to constitute an absolute defense to plaintiff’s action. As above shoAvn, this same accepted notice, of this same defendant, was under consideration by this court in Ault v. Nebraska Telephone Co., supra. In considering that document, this court, speaking through Mr. Commissioner Dtjffie, said: “Whether the master may impose upon his servant duties and obligations not in line of his employment, and relieve himself from liability for negligence in furnishing reasonably safe appliances for use by the servant, is not a question of grave doubt. That he cannot by a direct contract to that effect escape liability for negligence is well settled; such contracts being against public policy. The state has an interest in the lives and healthy vigor of its citizens, which it will not allow the master to endanger by contracting against liability for his negligently endangering them.” The reasoning of the commissioner is well supported by his citations and many others. See 26 Cyc. 1094, and note 9. We have again considered the question, and are unanimously of the opinion that the rule is sound and salutary that any contract by which an employer seeks, to' impose upon his servant duties and obligations which the law imposes upon him, and to relieve himself from liability for negligence on his part, is against public policy and void.
But, aside from this, there are other good reasons why the judgment in favor of the defendant light company cannot be sustained. There was introduced in evidence the “rules and requirements of the electrical department of the city of Omaha for the installation and operation of electric Avires and apparatus.” These rules appear in ordinances passed by the mayor and city council of the city, the regularity of wliy;h is not questioned. Rule 28 provides: “Wires must cross each other at right angles as near as possible, and, where it can be done, must cross on arms secured to poles or fixtures.” * * * “Wires must be drawn taut to avoid SAvinging contacts, and in such cases the stretches must be short.” Rule 30 provides: “Telegraph, telephone, and all other wires of like character must not be attached to the same arm with electric light and poAver wires, and, when possible, must run on a separate line of poles and fixtures. When running on the same poles wires must be kept at all points
Thomas Olson, brother of plaintiff, testified that, when his brother was injured, he was telephoned to, and arrived at the point where the injury occurred some 15 or 20 minutes thereafter; that he made an examination of the wires while standing upon the pavemént below, which would be a distance of about 28 to 30 feet from the wires; that the electric wires crossed about 12 inches below the telephone wires. As to the condition of the wire his testimony is as follows: “Q. What was the condition of the wire, if you know, at the place where it was near the telephone wire? A. The insulation, for one thing, was all worn off. The wire was bare where this car was standing up against the wire. I noticed that in particular. Q. Noticed the car near the wire? A. It was standing up
The witness Yost testified that on the day of the accident he examined the place, and that his attention was called to the electric light wire. “Q. You may tell the jury the condition of that wire, as nearly as you can. A. The electric light wire, the insulation, the wrapping, was off of it badly along there, and it was — well, as near as I could judge from the ground, it was from, I should say, 12 to 18 inches from the telephone wire. Q. Did you notice the wire, as to whether it was tight or not? A. It was not tight.”
The witness Leo Huntley, who was passing along the street just before plaintiff met with the injury, had stopped and was watching plaintiff and saw him fall. He testified: “I seen him fixing the wires there. Then he turned around to fix some of the others they had there, and there was a flash, and then he fell. Q. Did you notice this electric light wire particularly then, with reference to its being tight or slack? A. It was slack.” On cross-examination we have the following: “Q. Was there anybody moving the electric wire there? A. It was moving around up there. It was swinging around up there— Q. Who was moving it? A. I do not know. I guess the wind was.”
This testimony by these witnesses stands entirely uncontradicted. No attempt was made by the defendant light company to disprove the testimony that, its wires at the point where they crossed the wires of the telephone company were only separated therefrom by a distance of from 12 to 18 inches, instead of 5 feet, as required by the ordinances of the city; that the insulation at that point was worn off and entirely gone from their wire, in violation of the requirements of the city ordinances,-and that
By instruction number 7, the court said: “Negligence is the failure to exercise such care, prudence and forethought as under the circumstances duty requires should be given or exercised. It may consist of the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do. Such negligence on the part of the plaintiff, which is the proximate cause of his injury, would defeat a recovery.” Ordinarily this instruction might probably be sustained, but in the present case, considering the disposition which had been made of the case as to the defendant telephone company and the submissi to the jury of the question of defendant’s negligence 1 instruction numbered 5, we think the last sentence in instruction numbered 7 was calculated to mislead th jury. After defining negligence in the first part of the instruction, the court said: “Such negligence on the part of the plaintiff, which is the proximate cause of his injury, would defeat a recovery.” We think the words italicized should have been omitted or the phraseology materially changed. If the word “if” had been substituted for the words “which is,” it would to some extent have relieved the sentence from a possible construction • by the jury that the court by the words used was saying to them that the plaintiff had been guilty' of such negligence and that it “is the proximate cause of his injury.” We think there is considerable force in the contention made by plaintiff in his brief that “this instruction leaves nothing for the jury to consider, because it says in so many words that it was Olson’s negligence that/ caused the injury.”
Without setting out in full, we do not think that instruction numbered 4 should have been given in the language used. There was no question about plaintiff’s right
Instruction number 9 is complained of by plaintiff, but the error in that instruction, if any, was without prejudice, as the jury never reached the question of the extent of plaintiff’s injury.
The question as to whether or not plaintiff was himself guilty of negligence in the matter was, notwithstanding exhibits 2 and 3, clearly a question for the jury, and ould have been submitted to them as to both defend-its. Conceding that it was his duty to be on the lookout for any defects or dangers incident to his employment, :.t does not follow that he was required to be on the lookout for dangerous situations, the existence of which he had no reason to suspect, and which the ordinances of the city expressly forbade. Under the evidence before them, the jury would be justified in finding that plaintiff had no reason to suspect that he would come in contact with electric light wires at all, and would not have done so if the defendant light company had strung its wires at the intersection five feet above or below the wires of the telephone company; that the accident would not have occurred if the electric wires had been strung taut, as required by the ordinances; that, if they had been so strung, there would not have been the swinging motion testified to by the witnesses, which possibly caused the wire to come in contact with the iron seat upon which the plaintiff was riding; and that the accident would not have occurred if the wires had been properly insulated, as required by the city ordinances. All of these facts, together with the fact that plaintiff while riding on the car, after passing one of the hooks, partially turned in his seat to complete
For the errors above enumerated, the judgment of the district court is reversed as to both defendants and the cause remanded for further proceedings in harmony herewith. I
Reversed.
Dissenting Opinion
I dissent from so much of the opinion as reverses the judgment as to the Nebraska Telephone Company, and concur in the remainder of the opinion.