Dutcher v. Rockland Electric Co.

Woodward, J.: The action was for negligence and was brought against the Hew York Telephone 'Company and the Bocldand Electric Company jointly; but the complaint, upon a motion made by the counsel for the codefendant, The Hew York Telephone Company, was dismissed as to that defendant and submitted to the jury as to this, appellant. The only question here involved is whether or not the plaintiff was guilty of contributory negligence as á matter of law. The defendant is engaged in the business of generating and transmitting electricity. Its power house is in the village of Hillburn, Bockland county, H. Y. The transmission of the current of electricity to various points in and around the town of Bamapo is through heavy insulated copper wires, some of which under a special arrangement with the Hew York Telephone Company were strung on the poles of that company about two feet below the telephone wires. On the 15th of June, 1906, the plaintiff, while in the employ of the Hew York Telephone Company as lineman and while in the act of passing the telephone wire over one of the electric wires belonging to the defendant, suffered a shock, through the contact, of his hand with a naked section of the live wire, which made him .unconscious and caused him to fall to the ground and to sustain the injuries for which he brings this action. . After reading the evidence I am of the opinion that the question of. contributory negligence here is not one for the court. The case at bar is not to be governed by Lofsten v. Brooklyn Heights R. R. Co. (184 N. Y. 148), where the plaintiff was so regardless of every precaution and so deficient in ordinary prudence that he was guilty of contributory negligence as a matter of law. . There the plaintiff, wlro stepped in front of an approaching car,; does not appear to have taken the slightest pains to ascertain whether he saw any danger in a place where danger was to be presumed; here the evidence [767] shows that the plaintiff took the precaution to look if the wire was all right before ascending; that thrbwn off his guard by the reply ► of his foreman that no gloves were needed, lie took it for granted that the wires were dead, and that he used as much care as the other linemen working on the job. The facts, therefore, do not, as in the Lofsten case, establish a controlling presumption of the plaintiff’s contributory negligence. It seems that whether or not a wire be heavily charged is not discoverable by observation alone, and while the plaintiff admits that he knew he was going to work among electric wires, he is not to be charged with contributory negligence if he can show that he used ordinary and reasonable care. It-is claimed that he was deficient in precaution because of his failure to use rubber gloves. Ordinarily, it is true, such omission would be , conclusive of negligence, but it appears that in the case before us the plaintiff was thrown off his guard by his foreman, who lie testifies in reply to the question, “ How about rubber gloves % ” replied, “ Go ahead, you don’t need any.” This testimony is corroborated, not only by the plaintiff’s own witness, but also by two of the witnesses of the defendant, who admit that they heard no orders - to use gloves such as the foreman claims to have given, and by the undisputed fact that not one of the four pole climbers put op gloves before the time of the accident. In respect to the liability of the appellant for its negligence, which will be discussed later, there is of course no question of master and servant involved. But in regard to the question of the contributory negligence of the respondent, his relation to his own employer and his conduct in following the directions and the suggestions of his foreman must govern our decision. The assumption of risk does not include such as may, easily be prevented or obviated by the master. It can hardly be maintained that the plaintiff here had the same means of knowledge as his foreman. The fact that the foreman was asked if gloves were necessary, shows that he was supposed to know more than his subordinates. The fact that only the week before he had given positive instructions that gloves should be used by the linemen at the village of Suffern because of the proximity of electric light wires, seems to indicate not Only that he had superior knowledge,' but also that the men depended on him to [768] give them warning.- If he did not know of the high tension of the wires at Hillburn and the consequent danger, it ivas his -particular business to know,. Moreover, if the. foreman by word or act,, or by « failing to bring home to his subordinates knowledge of a danger which is not obvious, the latter, if thrown off their guard, cannot be charged with contributory- negligence. (Fowler v. B. & O. R. R. Co., 18 W. Va. 579; Penn. R. R. Co. v. Ogier, 35 Penn. St. 60; Morrissey v. Wiggins Ferry Co., 47 Mo. 521.) It appears that the current- could have been shut off while the men were working around heavily charged wires. The plaintiff testifies that when he knew tlie wires were alive he was accustomed to use gloves, and it seems that because the men had been told gloves were not necessary, he naturally took it, for granted that the wires were dead. The other linemen, it appears, also reached the same conclusion, for none of them used gloves,-though all were expected to do so when working around wires of high tension. The danger then was not an obvious one, and hardly admits of the analogy, suggested :. “ The man who heedlessly pulls the trigger of. a loaded firearm takes it for granted that it is not loaded, but no one would excuse his carelessness on the ground that he had been told that that was a.-prudent way to find out.” The fact that thejquestion was-asked .would indicate ordinary and reasonable prudence. The plaintiff’s experience covered but a few months, he had never worked among bare electric wires, and his action in not wearing gloves would seem to'have been induced by the words of his fore-, man and by the actions of the others. The defendant contends that the plaintiff should have been on his/.. - guard, since he admits that he observed that the insulation, was ■ in some places defective. - . •' The plaintiff, however, claims that as he took the precaution to observe the wire on the side of the pole where he was to work,, and as it looked “ all right” to him from the ground, he was not negliT gent. Mor do I see that "negligence is to be imputed to him because he ascended the pole without looking up. Besides, to ascend the pole with eyes elevated would be a procedure of some difficulty and danger. It is true that after the.accident the bare spot of some inches where the plaintiff was injured, was, seen from the ground,-fi. but the plaintiff’s failure to see what was not specifically'called -tp [769] his attention is, in view of his precaution to look, not necessarily to be construed as negligence. It is true that the carelessness of his coemployees should not excuse the plaintiff, but the fact that all of the linemen failed to use gloves is surely significant. It shows that there was no appreciation of danger. On the other hand, had the plaintiff been a solitary exception, the fact that gloves were used by the others would be strong evidence of his negligence. .But. that they as well as the plaintiff were thrown off their guard by their superior tends to show that their conduct was such as would be true of the average prudent man under the same circumstances. More care than this the law does not require. ' I fail to see how the plaintiff was negligent in assuming that his foreman, who was invested with discretionary powers', and clothed with authority, had superior knowledge. Though the master may require in his servant, ordinary care and observation, yet, as he .is bound by the act of his foreman, to the, plaintiff in the case at bar no .negligence attached if his conduct was controlled by the words of his superior. The plaintiff can only be found negligent if it be shown that the risk was fully understood by him. (Burgess v. Davis Sulphur Ore Co., 165 Mass. 71.) It is not enough to show that he had knowledge of the defect. It must also appear that he appreciated .the danger, and the failure of all the pole-climbers to use gloves tends to prove-that the danger was not appreciated. Suppose all of them' had been injured -simultaneously ? Suppose that instead of four there had been fifty, and. that they had all been told that glovés were not necessary, and that relying upon such statement all had been injured? Would that not be evidence that they had. used ordinary and reasonable care ? Could the defendant in such case escape his liability ? That the others escaped injury was their good fortune-. The plaintiff’s position is exactly the same as theirs collectively. Furthermore, knowledge of a defect followed by an assurance of safety does not impose an assumption of risk. (Stomne v. Hanford Produce Co., 108 Iowa, 137.) The master is liable where his negligence was the efficient cause, though acting in conjunction with [770] cause for which he was not responsible.- (Malott v. Hood, 99 Ill. App. 360.) The appellant claims that there was a rule that gloves should be used. Yet, if in “practice a rule is violated with the .knowledge of the master or of those who represent him, it will be regarded as abrogated or modified.” When, for example,, at the time of his employment a person promised in writing to use a stick given him to uncouple ears, but was told that it was a matter of mere form, and that the use.of such sticks had been generally disregarded, he Was not precluded from recovering. (Louisville & N. R. R. Co. v. Foley, 15 Ky. L. Rep. 17.) As to the negligence of the appellant there can be no doubt. It was shown that the wires had -been used for ten years or more, and that the insulation had become so worn that in some places it hung down in shreds, leaving wires of high tension bare and unprotected. There was some testimony to the 'effect that insulation is not protection, but the inference of the jury that the accident would not :have happened if the wires-had been completely insulated is war-1 ranted by the evidence. . To quote Mr. Justice Jenks, in Paine v. Electric Illuminating, etc., Co. (64 App. Div. 479): “ It was the duty of the defendant to use due care in the stringing of its electric wires of dangerous voltage across the streets of the city, regardful of the existence of other wires, of the possibility of contact therewith, of the generation of high tension from its wiresj and mindful that such other wires from time to time might require the attention of linemen and other, workmen in the matters of repair, readjustment, clearance, insulation and restoration to their normal functions.” It is well established by the decisions that the defendant should «have kept its wires in repair and in safe condition. That the-wires were of high tension and exceedingly dangerous because of the defective insulation is nowhere disputed.^ The jury had the right to find the defendant negligent, and their verdict as to fhe freedom of the plaintiff, from contributory negligence is warranted by the evidence. I think that the judgment and order-should be affirmed. Jenks and Hooker, JJ., concurred ; Miller, J., read for reversal, with whom Gaynor, J., concurred.