McGuire v. . Bell Telephone Co.

Cullen, J. The action is servant against master to recover damages for personal injuries. The plaintiff at the time of his injury was a lineman in the employ of the defendant, and pursuant to the direction of his foreman had climbed a pole on which the defendant’s wires were strung for the purpose of tightening those wires. While engaged in this work the pole broke and the plaintiff was precipitated to the ground, receiving severe injuries. It then appeared that the pole was decayed and rotten in the interior with a mere shell of sound wood on the outside. It is conceded that the defective condition of the pole caused the accident. The evidence shows that this Condition of interior decay without external manifestation is common in telegraph or telephone poles, and that to discover it poles are tested at intervals of time by digging down at the base of the pole and driving into the pole a crow bar or screw driver. These tests are not made by men while engaged in stringing the wires, but by separate gangs sent out for the purpose of inspection. When any pole is found to be unsound it is replaced by a new one. The pole which broke had been found, months before the accident, to be decayed and unsafe; but the inspection which revealed this fact was not made by an inspector of the defendant, but by a foreman of another company. The pole in question belonged to the Rochester Gas & Electric Company, which had erected a line of poles and wires for the purpose of supplying electric light, and it was its foreman who found that the pole was decayed. The defendant strung its wires on the poles of the gas and electric company by the license or permission of that company. Ro inspection of the pole wras shown to have been made by the defendant at any time. *211 The unanimous affirmance by the Appellate Division of the judgment entered on the verdict is conclusive upon us that the evidence of defendant’s negligence was sufficient to support the verdict. (Reed v. McCord, 160 N. Y. 330.) The only question in this case that survives such affirmance arises on the charge of the trial court and its refusal to charge the defendant’s request. The court charged that the defendant: .was not relieved from responsibility by the fact that it was. not the owner of the defective pole, and that it was its duty to exercise reasonable care by way of inspection to see that the pole was safe. The defendant excepted to the charge that the ownership of the pole by another company did not relieve it from responsibility, and asked the court to charge that it owed the plaintiff no duty to inspect the pole. This request the court refused and the defendant excepted. It will thus be seen that the question raised by these exceptions, whether the defendant owed the plaintiff any duty to inspect the pole, it being owned by another company, is one of the very questions necessarily determined by the denial of the motion to dismiss the complaint. But as the question was raised without any request for the direction of a verdict or for a non-suit, the appellant is entitled to have it passed upon by this court. Upon the manner or shape in which the question of law is presented depends the right of review by us. In the case of a unanimous affirmance we are precluded by the Constitution from looking into the record to see if there is any evidence to support the verdict. But a party is entitled to have his case submitted to the jury with correct instructions as to the law and we are equally precluded from looking at the evidence to see whether the propositions requested to be charged would logically have been fatal to the disposition of the motion for a nonsuit or for direction of a verdict. The master personally owes to his servants the duty of using ordinary care and diligence to provide for them a reasonably safe place to work and sound and suitable appliances and materials with which to work, and is bound _ to inspect and examine these things from time to time and to use ordinary *212 cave to discover and repair defects in them. (Shearman & Redfield on Negligence, § 194; Kain v. Smith, 80 N. Y. 458; Cone v. Delaware, L. & W. R. R. Co., 81 N. Y. 206 Probst v. Delamater, 100 N. Y. 266; Doing v. N. Y., Ontario & Western Ry. Co., 151 N. Y. 579.) “ Seasonable care involves proper inspection, and negligence in respect of it, in such cases as this, is the negligence of the master, and none the less so when the inspection is committed to a servant.” (Byrne v. Eastmans Co., 163 N. Y. 461. See Durkin v. Sharp, 88 N. Y. 225; Bailey v. R., W. & O. R. R. Co., 139 N. Y. 302; Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 416.) The application of this rule may depend on the nature of the work and the manner of its conduct. If this injury had occurred to the plaintiff while engaged in the erection of a telegraph line, from the act of other workmen in the •selection of an unsafe pole when the master had provided a sufficient number of sound poles, it may be that such selection would be the negligence of a fellow-servant and the master not be liable. But in the present ease the plaintiff wras employed to work on a line already erected constituting the permanent plant of the defendant. It may also be that defects in the upper part of the pole can only be discovered by the linemen when they ascend them, and that such inspection as is necessary must be left to them to make. We may concede for the argument that the defendant might have so conducted its business as to have devolved upon the linemen all duties of inspection of whatever character. But the undisputed evidence in this case is to the effect that it did not so conduct its business, and that the common practice of telegraph or telephone companies is to make special inspection of their poles. In McIsaac v. Northampton Electric L. Co. (172 Mass. 89) it was held that the defendant was not bound as against its linemen to inspect its poles below the surface of the ground. It is said in the opinion in that case: “ All the evidence tends to show that in the ordinary course of the business the linemen, who are often expected to work alone without supervision, as the plaintiff was working at the time of the accident, would *213 examine the poles for themselves so far as they considered it necessary to do so for their safety. They easily could make any necessary tests to ascertain the condition of the poles as to soundness without the aid of special inspectors, and from their knowledge of common affairs could judge whether the pole was safe to go upon.” The uncontroverted evidence in this case is to the contrary, and establishes that linemen do not test the poles which they seek to ascend, but leave that duty to be performed by inspectors. The advantage to the company by this course is plain. If each lineman was to dig around and test every pole before he ascended it a large part of his time would be taken up by this work alone, and repeated tests would soon impair the stability of the pole itself. There are cases to be found in other states tending to support the claim that a lineman assumes as a risk of his employment the chance that the poles may be decayed and unsafe, and that he must discover their condition for himself. ¡Neither these cases nor the one cited from Massachusetts are authorities where it is shown to be the practice for the companies to make special inspections. There is, therefore, nothing in the present case, unless it be the ownership of the pole by another company, to take it out of the general rule laid down by Judge Landon in Byrne v. Eastmans Company (supra) that “ Reasonable care involves proper inspection, and negligence in respect of it is the negligence of the master.” I do not think that the fact that the defendant did not own the pole which fell relieved it from the duty of reasonable inspection to see that the pole was safe. The pole formed part of the permanent line of the defendant through the streets of the city of Rochester. On that pole the defendant strung its wires. The stringing of the wires necessarily subjected the pole to strain, which would be increased by the weight of the lineman whenever he ascended the pole. If the pole was unsound and inadequate to bear this strain it would naturally result in the pole breaking down. The defendant’s own work, therefore, was an essential factor in and a proximate cause of the falling of the pole. Certainly if the pole had injured a *214 passer-by, it would be no answer for the defendant to say that it did not own tlie pole. It was bound, both as to third parties and as to its own workmen, to erect and maintain a reasonably safe structure, and it had no right to use for that purpose an unsafe appliance, whether its own or that of a third party. By using the pole as part of its line, it adopted it as its own. As it would have been liable had the pole when first used been decayed and insufficient for the purpose of carrying its wires and supporting its linemen, it was equally liable when the pole Subsequently became unsafe from decay, which reasonable inspection would have discovered. The duty of the defendant was just as great to safely maintain as to safely construct, and that duty cannot be delegated so as to exempt the master from liability. But I do not see that ,the defendant has delegated this duty. It received • from the Rochester Gas & Electric Company a bare license to string wires on the poles. The latter company received no compensation for the privilege; it made no agreement to maintain the pole securely, and made •no representation as to its condition or sufficiency. It would seem, therefore, that it owed the defendant no duty as to the safety of the pole which the latter used at its own risk, and it is questionable whether the Rochester company was bound to exercise any affirmative vigilance in favor of the defendant’s employees. (Larmore v. Crown Point Iron Company, 101 N. Y. 391.) Had the defendant contracted with the owner of the pole for its proper inspection and repair or replacement, a different question would be presented, and it might be argued that in securing such an agreement it had exercised reasonable care to provide its workmen with a safe place and safe appliances. But as the defendant did not contract with others to inspect and repair the pole, that duty rested upon it. It is claimed by the learned counsel for the appellant that the rule held by the trial judge in this case would lead to most unreasonable results. It is said that under the doctrine of the charge a merchant would be liable for injuries suffered by his traveling salesmen on railroads which the employer had neglected to inspect, and that a master would be similarly liable *215 for defects in an elevator which his workmen might be compelled to use in going to a place where they were to do their work. These are false analogies, and the doctrine of the trial court leads to no such conclusions. When it is said that the master is bound to furnish his servants a reasonably safe place in which to work, it is plain that this rule applies only where, in the ordinary conduct of the business, the master furnishes the place. In many occupations the master does not furnish the place for work at all. Such is the case in the instances suggested by the learned counsel, and many others, as where a master mechanic sends his journeymen to make repairs in the buildings of others, or where a contractor having agreed to cut timber from land employs laborers for the purpose. Instances might be multiplied indefinitely. In all these cases the exemption of the master from liability (except for hidden danger of which he has knowledge and which it would be his duty to disclose to his servants) is based, not on the theory that he may rely upon the owners of the premises having done their duty, but on the ground that in no proper sense of the term does he furnish the place. It is not so here, however. The pole was part of the permanent plant of the telephone line which the conduct of the business made it the duty of the master to furnish. The pole was in the possession of the master so far as it was capable of being possessed by any one. It was in constant service in maintaining the defendant’s wires, and apparently at all times subject to be ascended by its servants when the necessities of the defendant’s business -might require. If the license received by the defendant from the Gas & Electric Company did not permit it to properly inspect the pole to ascertain its safety (which I deny), then the fault lay with the defendant in using a pole, the contract as to which with its owner precluded defendant from seeing that it was safe. It is said that the plaintiff knew that the pole did not belong to the defendant. This is true. But it does not appear that he liad any knowledge of the terms of the agreement under which the defendant used the pole. He is not chargeable *216 with notice of the fact that under the agreement the defendant, as is claimed by its counsel, had no right to inspect the pole or repair it, and the owner was under no obligation to de either. He cannot be said to have assumed the risk of such a situation. The case of Dixon v. Western Union Telegraph Company (68 Fed. Rep. 630) is plainly distinguishable from the one at bar, and was doubtless well decided. The pole on which the plaintiff met his injury through the defective character of the clamps or steps attached to it, not only was not the property of the defendant company, but was not in any way used by it as a part of its line or plant. The occasion to ascend the pole arose from the fact that the wires on the pole interfered with the defendant’s wires, and, hence) it was necessary to shift the position of those wires. The use of the pole was, therefore, as stated by the learned court, casual, and the decision of the court that the defendant was not liable for the condition of the pole proceeded on this ground, a ground which has no-application to "the present case. The judgment appealed from should, be affirmed, with costs.