80 A.D. 316 | N.Y. App. Div. | 1903
Lead Opinion
The plaintiff, a servant of the defendant, brings this action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant, in that it did not provide him with a reasonably safe place in which to work. The defendant was engaged in removing its cables and wires, used in the operation of its electric street railway, from wooden poles on one side of Jackson avenue, Long Island City, to new iron poles on the other side of the avenue. The plaintiff was one of the linemen employed in this work, and, preparatory to taking down the cables, he ascended one of the wooden poles and started sawing the wire. After cutting through the wire, the pole fell, carrying the plaintiff with it, result
The appellant urges that the proximate cause of the pole breaking was the strain upon it from the wires and cables after they had been cut, through the negligence of the plaintiff and his fellow-servants, this alleged negligence of the plaintiff and his fellow-servants consisting in a failure to use the proper appliances furnished by the defendant. Without deciding this question, it may be said that there was a conflict of evidence upon what were the proper appliances to be used, and there was evidence that the plaintiff, at the time of the accident, was proceeding in a manner used by others, and which was not shown to be improper or to involve greater danger than the method which the defendant claims should have been adopted. The real question here is whether the defendant provided a reasonably safe place in which the plaintiff was to perform his • labors; whether it had discharged its duty in protecting him against dangers which were not known and obvious to him in the performance of a duty necessarily involving danger, and whether the plaintiff, in undertaking these dangerous duties, used the degree of care which it was reasonable to expect of him under the circumstances. He was not bound to exercise the highest possible degree of care; he was not bound to fasten the pole with guy ropes, braces, etc., which would make it impossible for the pole to fall, unless the danger of proceeding otherwise was known and obvious upon a reasonable inspection consistent with the discharge of his duties. He had a right to assume that the defendant had discharged its duty in so far as a reasonable use of his faculties would not disclose to the contrary, and he had a right to use such of the appliances furnished him -
We think the verdict for $3,000. is not excessive, and we are clearly of opinion that the learned court below did not err in refusing to dismiss the complaint at the close of defendant’s case. There were questions of fact for the jury to determine, and with the result reached this court is not prepared to interfere.
The judgment and order appealed from should be affirmed, with costs.
Bartlett, Jenks and Hooker, JJ., concurred; Goodrich, P. J., read for reversal.
Dissenting Opinion
I dissent. The plaintiff had been a lineman for fifteen years and was familiar with the dangers of that occupation. The accident resulted from his cutting a heavy cable without using the tackle provided for supporting the pole during such an operation. There were fellow-servants engaged in doing the work, whose duty it was to examine the condition of the pole, and if they had done this, its condition would certainly have appeared. Their failure to do so was the negligence of fellow-servants.
Judgment and order affirmed, with costs.