Voorhees v. Hudson River Telephone Co.

Chase, J.: Plaintiff’s intestate was a lineman in'the employ of the defendant and was killed by the falling of a telephone pole on the 19th day of October, 1904. The pole in question was on the west side, of a roadway running nearly north and south in or near the village of Hoosick and attached to it were telephone and telegraph wires. On the 5th day of September, 1904, the pole with the wires fell into the street. It was again put in a perpendicular positibn, the foot of the pole resting on the part from which it had been broken. The wires were on a slight curve that pulled the pole to the east and a guy wire was fastened from the pole to a building situated west of the street. Some time between September fifth and October- nineteenth a new pole was erected within eight to twelve inches of the old pole, which new pole was designed to take the wii;es that were then fastened to the crossarm of the old pole. The old pole was broken off from two to four inches below the surface of the ground. A. person by ordinary observation would not notice whether the pole had been-broken off unless he went to look at the foot of it. On the day of the accident the local manager of the defendant telephoned to. the intestate that the Postal Telegraph Company had Set a new pole in place of the old one and directed him to change the wires and to be earefuL The local manager testified that he [467] said to the intestate that there had been a new pole set to take the place of an old one somewhere in the village of Hoosick and that it was an old pole and to be careful and not take any chances. The intestate went to the place where the new pole was erected and climbed the new pole. He had a helper, and he asked the helper for a halter, and it was thrown to him, and with the halter the intestate tied the new and the old poles together at the top. The helper was then sent by the intestate on an errand and shortly thereafter people near the location of the pole heard a crash and found that the old pole had fallen, and that the intestate was under the pole near the top thereof, seriously injured. The wires had been removed from the crossarm and the crossarm had been unbolted from the pole and lay on the ground near the pole, and the rope halter with which the poles had been tied together was lying on the ground near the pole untied and unbroken. The intestate died a few hours thereafter. On these facts the jury found the defendant negligent and the intestate free from negligence contributing to the injury. We think the verdict was against the evidence. The intestate knew that the old pole was about to be abandoned and that the work to be performed by him in transferring the .wires was to complete its abandonment. He had with him all necessary apparatus to safely perform the work. He was cautioned to be careful, because the pole was an old one. . The only care required because of the fact of the pole being an old one was by reason of the danger that it might fall when the wires supporting it were removed. If the pole was in danger of falling such,danger was a necessary risk in transferring the wires. There is not the slightest evidence of any care on the- part of the intestate either in the examination of the old pole before climbing the new pole or in connection, with the work performed by him in transferring the wires. It may be assumed that he ascertained that the pole was in danger of falling if the supports from the wires and guy were removed, because the first thing that he did upon climbing the new pole was to tie the two poles together at the top. The only evidence before us relating to the subject of tying poles together at the top before removing the wires is that such tying of the poles is only done when there is some visible danger of the old pole falling. If the tying had been prop [468] erly done by the intestate, the old pole could not have fallen. What more than' tying the poles together at the top could the intestate ■ have done, if lie had been expressly told that the old pole- had been broken at the bottom, and that unless secured it would fall as soon as its supports were removed ? The intestate, by what, he did, admitted that' he knew that the old pole was in danger of falling. Whether the intestate changed his position from the top of the new pole and climbed the old one, or was thrown to the ground in some other manner than while on the old pole, at work, does not appear. Neither does it appear whether the guy wire that held the old pole from the west was broken or had been cut by the intestate. Just how the accident happened is a matter of conjecture, and the most probable conjecture is that the intestate, knowing -that the old pole was in danger of falling as. soon as the wires and guy were removed therefrom, tied it to the new pole with the halter and then removed the wires and cut' the guy, depending upon the halter to hold the old polé to the new one, and that by reason of the fact that the halter was insecurely tied by him, it became untied and let the old pole fall, and that t'hp intestate being, at least to some extent, v sustained by the old pole, fell with it and1 received the injuries '• which caused his death. The plaintiff was required, to'show affirmatively that the intestate was free from negligence contributing to his death. It was not necessary to establish such fact by direct evidence,. but where the circumstances are relied upon in the absence of direct evidence to show a lack of contributory negligence, they should point-by a fair and reasonable inference to' such conclusion. The circumstances disclosed by the record -now before us do not sustain the conclusion that the intestate was free from contributory negligence, and the judgment and order should -be reversed and a new trial granted, with costs to the appellant to abide the event. 1 All concurred, except Chester, J., dissenting in opinion; Houghton,, J., not sitting.