86 Ark. 329 | Ark. | 1908
(after stating the facts.) The defendant bases its objection to the first instruction given by the court, and to the refusal of the court to give the instructions asked by it, upon the ground that the record discloses no 'evidence to sustain the position ■ assumed by plaintiff that the wire chief stood in the relation of vice-principal to the defendant. “Electrical companies, in the maintenance of their wires, owe to their employees, as well as to others who' may of right, either for pleasure or work, be in the vicinity of such wires, the duty of exercising reasonable care, that is, such care as a reasonably prudent man would. exercise under the same circumstances. We have already stated that reasonable care or ordinary care is a degree of care varying with the circumstances of each case, and which, in the case of electrical wires carrying a dangerous current of electricity, requires the exercise of a high degree of care to keep them properly insulated and so suspended as not to endanger lives. And this is the measure of an electrical company’s duty to its employees. And it owes the duty not only of properly insulating its wires, but also of exercising reasonable care in their suspension, to prevent contact with other wires. 2 Joyce on Electric Daw, § 663.
Corporations can only act through their agents. Therefore it devolved upon the company to have some ■ one to perform its duties to its employees. Its system of conducting its business required all defects, either in the wires or the telephones, to be reported to the wire chief. All the troubles arising from the telephone service were reported to him. His duty was to make tickets of these troubles and give them to the respective employees whose duty it was to make the necessary repairs. He was the directing agent, and the line foreman and the trouble men were under him. It was part of the system of work that they should only make repairs under the direction of the wire chief.
There must be some one acting for the master, else the business would soon be involved in hopeless confusion. The employees would work at cross purposes, and might daily be subjected to the hidden but very dangerous force of heavy electrical currents. In the present, case it can not be denied that it was the duty of the master to use reasonable diligence in repairing the dangerous contact between the telephone and electric wires, and that the injury resulted because the repairs were not made.
It is evident from the testimony as shown in the record that the rules and regulations of the company required that the trouble men should work under the directions of the wire chief. We are of the opinion that this made him a vice-principal.
“It has been decided that a foreman under whom workmen are employed is a fellow servant’ with the workmen, when engaged in accomplishing with them the common task or object; but when discharging or assuming to discharge the duties towards the workmen which the law imposes on the principal he is a vice-principal.” 2 Joyce on Electric E'aw, § 655.
The doctrine was recognized by this court in-the case of Western Coal & Mining Company v. Buchanan, 82 Ark. 502, in which the court said: “The duty of inspecting a mine for gas is always a principal’s duty, and its delegation to a servant does not make that servant a fellow servant of his co-workers; but he becomes, while in the performance of such duties of inspection, a vice-principal.”
Notice to the wire chief (he being a vice-principal) of the dangerous condition of the wires was notice to the company. The line foreman whose duty it was to fix the wire left the office of the company on the morning of the accident before Pemberton left. The undisputed evidence shows that it would take the line foreman only a few minutes to cut the wire and relieve the contact. Whether or not Pemberton had reasonable grounds to believe that the repairs would be made before the time of the accident was a question for the jury.
The following from Shearman & Redfield on Negligence is quoted as the correct rule in the case of Western Coal & Mining Company v. Burns, 84 Ark. 79: “Where a master has promised to repair a defective appliance, the employee does not assume the risk of injury caused thereby, within such a period of time 'after the promise as would be reasonably allowed for its performance, or within any period which would not preclude all reasonable expectation ■ that the promise might be kept.”
In the case of Archer-Foster Construction Company v. Vaughn, 79 Ark. 20, it was held that a master is liable for the negligence of a vice-principal in failing to provide a servant a safe place to work, though such vice-principal was also guilty of concurring negligence as a fellow servant.
It is also contended that Pemberton was guilty of contributory negligence because he stood on the messenger wire which was grounded, but the uncontradicted evidence shows that this was the custom, and there was no danger in standing on it if it had not been for the contact with the electric light wire.
Appellant asked the court to give the following instruction:
“No. 8. You are instructed that if you believe from the’ evidence in this case that the plaintiff on the morning of his injury passed the point where the wire had been tied down the evening before, and saw, or could have seen, that said wire was still tied down, and that no permanent change had been made, then he assumed the risk of said condition when he went to work at the point where he was injured, and your verdict should be for the defendant.”
The court gave it with the words “or could have seen” eliminated. It is now claimed that the_ court erred in not giving the instruction as aslced by appellant, but this would have been practically telling the jury that it was the duty of appellee to have examined the condition of the rope and wire the next morning, regardless of whether a prudent person would have done so.
The other instructions asked by the appellant, and upon which its counsel predicates error, were on the fellow servant doctrine, which has already been discussed.
The amount of the verdict is sustained by the evidence. Plaintiff lost his arm. Both feet are deformed and swollen, and the jury had sufficient testimony upon which to find that the injury to his feet was permanent. Besides, his pain and suffering must have been very great.
Appellant filed a motion to reverse and dismiss this case, and for grounds states that, since the trial in the lower court and during the pendency of this appeal, plaintiff has compromised his claim against the Texarkana Gas & Electric Company, and executed to it a release or a covenant not to sue for the sum of $500. To this motion plaintiff filed a response in which he denied that he had released said company from liability, but admitted that he did enter into an agreement with it not to institute any suit against it on account of the injury which is the basis of this suit. He exhibits the agreement with his response. An examination of it shows that it is a covenant not to sue. Conceding but not deciding that the question may be raised for the first time in this court, we are of the opinion that the motion should not be granted for the reasons here given. 'In the cases of Hadley v. Bryan, 70 Ark. 197, and of Pettigrew Machine Co. v. Harmon, 45 Ark. 290, it was held that a covenant not to sue does not amount to a release. These were cases arising out of suits .on contracts, but the same distinction is applied to joint tortfeasors. A covenant not to sue one of two joint tortfeasors does not operate as a release of the other from liability. 1 Jaggard on Torts, p. 345.
Affirmed.