123 N.Y.S. 1037 | N.Y. App. Div. | 1910
The plaintiff was a lineman in the employ of the defendant, and on the 30th day of July, 1908, was severely injured while in the
It is urged that the plaintiff was guilty of contributory negligence as a matter of law because he did not inspect the wires, and the case of Johnston v. Syracuse Lighting Company (193 N. Y. 592) is relied upon, but we are of the opinion that, that case is entirely different from the case here under consideration. There it was held that the court erred in refusing to charge the request of counsel for the defendant that it was the duty of the plaintiff’s intestate to inspect the crossarm and see that it was strong and sound enough to hold him before he placed his weight thereon, particularly in a place of known danger. In that" case the plaintiff’s intestate stepped out upon the end of a crossarm at a considerable height, and it broke, owing to a knot and a weather check, which were plainly visible. The court pointed out that while it was the duty of the master to use reasonable care in providing a reasonably safe place for the plaintiff’s intestate to work, the master was not an insurer ; that the duty rested upon the linemen to use some judgment in their dangerous occupation, and this is obviously good law. But no such question was presented in this case; the evidence showed that the plaintiff had no knowledge of the presence of this high-voltage wire ; that he did not discover the bracket on his way up, and that he had no reason for anticipating that there was a high-voltage wire maintained upon this pole; he' was sent up on the west side of the pole, with no
The defendant in permitting the wires of an electric lighting corporation to be maintained upon its poles assumed toward the plaintiff the same duty that it would if it had itself maintained such high-voltage wires; it owed the duty of inspection to see that the place afforded for the plaintiff to perform his labor was reasonably safe; at least that there were no hidden dangers. It owed him the duty of notice of the dangerous character of the high-voltage wires before he owed the duty of care in inspecting them for defective insulation, and having failed in this regard, the defendant is not in a position to maintain either that it is free from negligence or that the plaintiff was guilty of contributory negligence in failing to make an inspection. He was called upon to use reasonable care to avoid . those dangers which were open and obvious, or which were necessarily incident to his employment after the master had discharged his duty in respect thereto, but he was not bound to make a careful investigation to learn, whether the defendant had permitted other corporations to-use its poles to carry a dangerous current, or to anticipate that the wires upon these poles would be maintained in a dangerous manner. ;
The judgment and order appealed from should be affirmed, with costs.
Present—Woodward, Jenks, Burr, Thomas and Carr, JJ.
Judgment and order unanimously affirmed, with costs.