170 P. 88 | Idaho | 1917
The appellant owns and operates a telephone system extending through Eastern Washington and
Respondent in his complaint, inter alia,, alleges that on the 25th day of November, 1915, he received an order from the appellant’s chief operator at Harrison to locate certain trouble on its pole line; made an examination and found the wires attached near the top of one of its poles were crossed; it was not his business or duty or within the scope of his employment to inspect the poles for the purpose of determining whether they were in a safe or dangerous condition; from an ocular examination made by him before ascending the pole there were no outward, apparent or visible defects; before ascending the pole, however, respondent seized hold of it, or, in other words, gave it what is known among linemen and troublemen as the “once over”; thereupon he ascended the pole for a distance of about 35 feet and proceeded to disentangle the wires,' and while thus engaged the pole broke about eight inches below the surface of the ground, where it had rotted until it was practically gone. Respondent further allegés that the injuries were occasioned by reason of the negligence, carelessness and wrongful acts of appellant in not having the pole removed and a new, safe and sound pole erected in its stead; appellant had actual knowledge of the unsound and unsafe condition of its pole line, which had never been inspected by the company, although it knew the same had been built from twelve to fifteen years; appellant was negligent and careless in ordering respondent to ascend the pole or to make repairs thereon in its
Appellant in its answer denied all of the material allegations of the complaint and set up assumption of risk and contributory negligence.
Briefly stated, the material facts are in substance as follows : The employment of the respondent by appellant is not denied; the scope of his employment is controverted; there is no controversy over the fact that the respondent sustained serious and permanent injuries while in the employ of appellant and while acting under its direction in correcting the trouble on its telephone line as alleged in his complaint; it is undisputed that the particular pole in question, on which he was employed and which broke and fell with him had rotted practically through beneath the surface of the ground some eight or ten inches; that the pole was in an unsafe condition which was not known to respondent; that the pole line had never been inspected by appellant for the purpose of ascertaining its condition; that the defect could not have been discovered in the absence of an inspection.
It is unnecessary to discuss each assignment of error separately. The first five assignments go largely to the sufficiency of the evidence; assignments 6 to 20, inclusive, predicate error upon the giving of certain instructions and the refusal to give others requested by appellant. The twenty-first assignment that: ‘ ‘ The court erred in overruling the appellant’s motion for a new trial,” is in legal effect merely a summary of the various alleged errors.
The main question in issue toward which both parties directed their evidence is: Was it the duty of respondent under his contract of employment to make an independent inspection of the pole in question for the purpose of discovering hidden defects and to correct them, or was it the primary duty of the appellant company under its contract of employment with respondent to furnish him with a reasonably safe place to work and to maintain the same in a reasonably safe condition, and in order to do so was it the duty of appellant company to properly inspect its pole line, including the par
This important issue was squarely submitted, and we think correctly so, to the jury, in the following instructions: “I instruct you that it was the duty of the defendant company to provide and maintain a reasonably safe place for its employee, the plaintiff, to work, and that this duty is one that could not be shifted or delegated to another. The duty of inspecting its poles to learn if they were in a decayed or rotten condition below the surface of the ground so as to make them unsafe or dangerous for a lineman, known as a troubleman, in repairing wire trouble, to ascend and work upon, was a primary duty of the company which it owed to the servant and was bound to discharge in a reasonably diligent and careful manner. And in this case the plaintiff did not assume the risk of latent and invisible defects caused by the rotten and decayed condition of the pole underground, unless you find that the plaintiff under his employment by the defendant had agreed to do such inspection and thereby assumed such risk himself, or unless such latent and invisible defects would have been discovered by the plaintiff by the exercise of reasonable care and unless the plaintiff failed to exercise such reasonable care”; and “You are instructed that the law with reference to the master being required to furnish a safe place to work or safe instrumentalities, does not apply as to work which the employee is employed to make safe. So in this case if you find it was Mr. Ramon’s duty under his contract to make the pole safe, he cannot complain because the pole may have been unsafe.” (Western Union Tel. Co. v. Tracy, 114 Fed. 282, 52 C. C. A. 168; La Duke v. Hudson River Telephone Co., 136 App. Div. 136, 120 N. Y. Supp. 171; Dupree v. Alexander, 29 Tex. Civ. 31, 68 S. W. 739.)
Upon this issue the jury found that the duty of inspection rested upon appellant and not upon respondent. It follows that since the duty of inspection was a primary duty devolving upon the appellant, it thereby became responsible for negligence in its performance. (Western Union Tel. Co. v.
The record in this case discloses, as did the record in the case of Arnold v. Northeastern Pennsylvania Telephone Co., 253 Pa. St. 23, 97 Atl. 1038, that “if a pole appears straight and sound by outward examination by a lineman, it is customary for him to climb it at once, without further inspection, and this would appear to be the natural course for a lineman to follow”; and the supreme court of Pennsylvania in the latter case, referring to the situation just quoted, held that “to establish the doctrine that companies are not liable for any accident which might come to linemen, caused solely by the lack on their part of inspection of poles below the ground, when linemen are not instructed to inspect the poles and are not furnished the proper tools for such inspection, seems to us to be an unsafe doctrine, having little regard or care for the lives or safety of such linemen.” A positive duty rested upon the company to properly inspect and use due care to render reasonably safe its poles (Cumberland Telephone & Telegraph Co. v. Bills, 28 Fed. 272, 62 C. C. A. 620), and this obligation it could not escape.
In the case at bar appellant, conceding that it had knowledge of the decayed condition of its pole line, and that the same was unsafe, nevertheless seeks to excuse itself upon the theory that respondent possessed the same knowledge and thereby assumed the risk of hidden defects. But this contention fails to take into account the fact that respondent had no knowledge of the condition of the particular pole in question or knowledge of the latent defects and that he owed the company no duty of inspection. That he was not in
In the absence of the duty to inspect resting upon the respondent, he had a right to assume that the pole was fit for the uses to which the company applied it. (Holden v. Gary Telephone Co., 109 Minn. 59, 122. N. W. 1018.) Although he was furnished with no tools for the purpose of making an inspection, nevertheless the company, with full knowledge of the age and dangerous condition of its pole line, which it admits it had never inspected, seeks to relieve itself of liability upon the theory that respondent was its general manager, that tools for inspection were available, that he possessed the same knowledge it possessed, his employment was not limited and he had never been forbidden to inspect the poles; that whatever the dangers incident to his employment were, he had assumed the same and therefore could not recover. This contention is untenable. It is clear from the evidence that respondent was nothing more than a “troubleman” or “trouble-shooter” (Dow v. Sunset Telephone & Telegraph Co., 157 Cal. 182, 106 Pac. 587); that he was designated by some other name would make no difference, — the contract and the scope of his employment determined his relationship to the company and.not his designation. It was respondent’s duty to discover and correct minor troubles interfering with the telephone service, to keep the line open that messages might be sent and received and conversations carried on in order
While it is true that even a troubleman must use reasonable care to avoid open and obvious dangers, and that he assumes risks incident to his employment and which .grow out of the same, he is not required, under the general rule as we find it in cases of this kind, to make an independent inspection, unless such inspection is made one of his primary duties and is within the contract of his employment, or under express instructions to make an independent inspection for hidden dangers of each and every pole upon which he works.
This disposes of the assignments of error touching the sufficiency of the evidence and further renders a detailed discussion of the assignments with reference to instructions unnecessary. The main point in the case, and the instructions relating thereto, has already been discussed. The objections raised to the instructions given are all based upon appellant’s erroneous theory as to the matters already reviewed. Some of these instructions were given as requested by appellant with slight modifications; we have examined the modifications in the light of appellant’s criticism and have found that in each instance the instruction as given stated the law more favorably to appellant than would have been the case without the modification. The instructions which were refused, likewise, were drawn in the light of appellant’s erroneous theory of the facts hereinbefore considered
It is contended by appellant that, in any event, the verdict is excessive. Instruction No. 5 as given reads as follows: “I instruct you that, if you find for the plaintiff, the rule as to damages to be allowed is this: ‘Where an injury has been received by the servant on account of the negligence of the master, damages should be computed and ascertained and awarded on the basis, as nearly as possible, of compensating the servant for the pain, suffering and loss he has sustained and will sustain in the future on account of the injury ; and he should be placed, as nearly as it is possible to estimate, in as good a position as he was before the injury was inflicted.’ ” It is urged that the italicized portion of this instruction “turned the jury loose without chart or guide, to grant such damages as they may think the pecuniary necessities of the plaintiff might seem to need, regardless of the evidence in the ease,” and the case of Holt v. Spokane & P. Ry. Co., 3 Ida. 703, 35 Pac. 39, is cited in support of this contention. But the attempt on the part of appellant to draw a parallel between the instructions as here given and the situation confronting the court in' the Holt case is strained and untenable. The instruction as given, when read as a whole, fairly states the law and could lead no one
In any event, as is tacitly conceded by appellant, the instruction has no important bearing except as to the amount of the verdict, which was the full amount demanded in the complaint. When all of the facts and circumstances in evidence are considered, there is nothing in the record which tends to show either that the verdict was excessive or that it was the result of passion or prejudice, or that it had been superinduced by any misconception on the part of the jury as to the law which was to control and guide their deliberations upon the evidence in arriving at a verdict.
We have carefully examined the entire ease and are satisfied that no prejudicial error is disclosed in the record. The judgment is therefore affirmed. Costs awarded to respondent.
