Burgess v. North Carolina Electrical Power Co.

Connor, J. There was evidence tending to sustain the allegation in the complaint that the pole from which plaintiff’s intestate fell, while engaged in the performance of his duties as a lineman, employed by defendant, was soft, and that this condition of the pole was the cause of his fall, resulting in injuries from which he died. There was no evidence from which the jury could find that defendant knew, at the time the pole was selected for use in its line, or at the time plaintiff’s intestate undertook to climb the pole, in the performance of his duties as a lineman, that the pole was defective in this respect. Want of knowledge, however, by an employer of a defect in an appliance or instrumentality furnished by him to be used by his employee, in the performance of his duties, does not necessarily relieve the employer of liability for damages resulting from injuries sustained by the employee, because of such defect. It is ordinarily the duty of the employer to make a reasonable inspection of the appliance or instrumentality, at least at the time of its selection, in order to determine whether or not it is free from defects discoverable by such inspection. Á breach of this duty is negligence and if such breach results in damage, the negligence is actionable. There was evidence from which the jury could find that defendant’s foreman, who was in charge of the construction of the new line, and under whom plaintiff’s intéstate was at work, inspected-the pole from which plaintiff’s intestate fell, in order to ascertain whether or not it was a proper and suitable pole to be used in its line. Whether or not, upon all the evidence, such inspection as the jury might find was made by said foreman, was a reasonable inspection and a performance by defendant of its duty to plaintiff’s intestate, to exercise reasonable care in the selection and use of said pole, was properly submitted to the jury, unless upon the facts of this case defendant owed no duty to plaintiff’s intestate to make an inspection of the pole, at the time of its selection for use in the line, in the construction of which plaintiff’s intestate was employed as a lineman. Upon its motion, at the close of all the evidence, for judgment dismissing the action as upon nonsuit (O. S., 567), defendant contended *226 that it owed no duty to plaintiff’s intestate, an experienced lineman in its employment, to inspect the pole, either at the time said intestate undertook to climb the pole, or at the time it was selected for use in its line, in order that it might discover whether or not the pole was too soft to hold his climbers. It contends that because of the peculiar duties which a lineman undertakes to perform for his employer the duty of inspecting poles which he is required to climb, and upon which he is required to work, is imposed by law upon the lineman and not upon his employer. A similar contention made by the defendant in Terrell v. Washington, 158 N. C., 282, was not sustained by this Court. Plaintiff in that case was a lineman; while he was at Work as an employee of defendant, near the top of a pole, supporting himself by a belt around his body, fastened to the pole, and by spikes strapped to his feet, and driven into the pole, the pole fell to the ground, causing him serious injuries. There was evidence tending to show that the pole was rotten and in very bad condition several inches under the ground, and that it broke 3 or 4 inches below the surface of the ground. The pole had been standing three years. There was evidence also tending to show that the pole was not sound or strong at the time it was selected for use by defendant, and that this fact could have been discovered by ordinary inspection. Defendant contended that the duty of inspection rested upon plaintiff, a lineman, and not upon defendant, his employer. Referring to authorities cited by defendant’s counsel in support of this contention, it is said in the opinion of the Court by Walker, J., “We believe that they all hold that this principle does not apply if the pole was originally unsound and unfit for use, and that it is the duty of a telegraph, or telephone, or electric light company, when it selects a pole for use in its line, to inspect it for the purpose of ascertaining if it is sound and fit.” In the Case Note to be found in 21 L. R. A. (N. S.), 774, it is said: “The great weight of authority suj)ports conclusion reached in the above case (Lynch v. Traction Co., 153 Mich., 174, 116 N. W. 983), that an experienced lineman assumes the risk of the breaking of any pole he is called upon to climb in the course of his employment, if the defect which caused the pole to break was not of original construction, and that therefore his employer owes him, no duty to inspect the pole before sending him upon it.” See cases cited. The evidence in the instant case tended to show that the defect in the pole which caused plaintiff’s intestate to fall existed at the time the pole was selected by defendant’s foreman for use in the line in process of construction, and that it could have been discovered by an ordinary inspection. The foreman selected the pole, and directed plaintiff’s intestate and other employees of defendant to use the pole. Before selecting *227 said pole it was tbe duty of defendant’s foreman to make a reasonable inspection of tbe pole, baving in mind tbat linemen in tbe employment of defendant would be required to climb tbe pole after it was installed by using spikes strapped to tbeir feet. Tbe failure to make sucb inspection, if found by tbe jury, was negligence, and defendant is liable for damages resulting from sucb negligence. It cannot be beld, upon all tbe evidence, as a matter of law, tbat plaintiff’s intestate by bis own negligence contributed to bis injuries, or by bis contract of employment assumed tbe risk of sucb injuries. Issues involving these defenses were properly submitted to tbe jury. There was no error in overruling tbe motion for judgment dismissing tbe action as in case of nonsuit. Defendant’s assignment of error based upon its exception to tbe ruling upon said motion is not sustained. Other assignments of error based upon exceptions to tbe admission or exclusion of testimony as evidence, and upon exceptions to instructions in tbe charge to tbe jury have been carefully considered; they cannot be sustained. Tbe judgment is affirmed. We find No error.