Geer v. New York & Pennsylvania Telephone & Telegraph Co.

Houghton, J.: The plaintiff’s intestate had been in, the employ of the defendant as repairer of its telephone line for about two years and nine months previous to his death, and. was familiar with the details of repair and the construction of the defendant’s line which ran through several counties bordering on the State of Pennsylvania. In the city of Elmira the telephone wires are encased in a lead cable which' is suspended from what is known as a messenger wire attached to poles. In the vicinity of the junction of John and High streets in that city this messenger wire is attached to the top of poles belonging to the electric light company, and below on a crossárm are six wires of the electric light company carrying various voltages of electricity. The messenger' wiré was reached by climbing the pole through these electric light wires. On the morning of the accident the deceased was engaged in. repairing the hangers which supported the cable from the messenger wire, and in the course of his work he detached one of the electric light wires to make a larger opening for him to climb through. While at work' he suspended himself by a carriage or swing from the messenger wire, pulling himself along the wire to make such repairs as were necessary. At one point his knee came in contact with an electric light wire, shocking him so that he dropped his pliers. No serious result followed,,and the pliers were regained and the deceased continued his work, his helper by a rope holding the, electric wire away from his person. After he had finished he ran himself back to a pole where he had separated the electric wires, and while standing on the crossarm which supported these wires, and when apparently reaching over to unbuckle his climbing spurs, he pitched forward through the electric light wires to the pavement, striking on his head, and from the injuries thus received, or, as is claimed by the plaintiff, from an electric shock received while standing on the crossarm, his death shortly occurred. Six or eight inches from the crossarm, on a wire carrying a voltage sufficient to kill, there was noticed immediately after the accident a break in the insulation, one witness saying [876] that the wire looked' bright and another that it looked dull. The hands of the deceased were red and blistered as thoug’h burned. There was no direct proof that the deceased died from an electric shock and his other injuries were sufficient to cause death. Just as he fell from the crossarm he did not have hold of the electric light wires with his hand but was grasping the messenger wire to support himself, and his feet on the crossarm apparently did not touch' the electric wires or the glass pins upon which they were supported. ■ , There was no proof that the decedent had previously repaired the wires on this particular portion of the line or that he was, directed to repair them or that the defendant had any reason to believe that the electric light wires were not properly insulated. Upon such state of facts the learned trial court nonsuited the plaintiff and we think properly. The situation is wholly unlike that class of cases where-a lineman is set to work by a superior amongst dangerous electric light wires of which he has no knowledge, without any warning that they exist. So far as the evidenóe discloses the decedent received nó directions from-the superintendent or any officer of the defendant to. repair that, portion of the line where the accident occurred, and it does not appear that the defendant knew he was working or intended to work on this portion of the line. The deceased had had two years’ experience in the repairing of the defendant’s telephone line and was furnished with a helper. He was entirely aware that he was working in close proximity to electric light wires which were charged with electricity for he received a shock while some distance from the pole where he stood when he fell, which caused him to let go the pliers with which he was working. On the very crossarm where he stood when he fell he had detached one of the electric light wires to make more room for him to let himself through between them. He did not come suddenly into a place of danger of which he had no knowledge, hut could see and know the entire situation. . Tn Raab v. Hudson River Telephone Company (139 App. Div. 286), upon which the appellant jelies, a lineman was directed by his overseer to climb a pole, to which was attached [877] a charged electric light wire of which he had no knowledge and concerning which he was not warned. In Dwyer v. Buffalo General Electric Company (20 App. Div. 124) the lineman of a telegraph company was injured while climbing one of its own poles because the defendant, the electric light company, had negligently permitted one of its wires to come in contact with the brace of a crossarm of the telegraph pole, of all of which the lineman had no knowledge. In Braun v. Buffalo General Electric Company (200 N. Y. 484) an entirely different question was presented, for in that case recovery was had upon the theory that the electric company negligently permitted defective wires to hang so low over private property that one working thereon was injured. The defendant telephone company was under no obligation to mspect the condition of the wires of the electric light company unless it had reason to believe that one of its employees would probably Work in such proximity to them that he might be injured if the insulation' was defective. The very large portion of defendant’s wires throughout the city was on its own poles and the case is barren of any proof that the defendant company knew or expected that the deceased was about to work upon that portion of the line where its wires were hung on poles of the electric light company. In addition, it is mere speculation that the deceased received any shock of electricity from the wire proven to have been defectively insulated, while standing in the position in which he did and unable to touch that part of the wire where the insulation had worn or sloughed away. The defect in the insulation was six or eight inches from the crossarm upon which he was standing, and even if he were standing directly against the wire- the toe of his shoe would not reach to the broken insulation. With one hand he had hold of the-messenger wire eighteen or twenty inches above the electric light wire, and with the other he was unbuckling his climbing spurs. The very great probability is that he lost his balance and that if he received any electric shock it_ was while he was falling through the mesh of electric wires. • No autopsy, was held. The appellant claims, however, that the circumstances surrounding the fall show that the decedent [878] must have received an electric shock for there was no apparent: reason for. his falling if lie did not. The decedent may have become faint or dizzy and released his hold upon the wire by which he was supporting himself. The only ruling of which the appellant complains in her. brief is that she was not permitted to show what the condition, of the electric wire was two weeks after the accident. From the remarks of the court it is apparent that the questions’ upon this subject were understood as an attempt to show subsequent repair of the wires. If the plaintiff desired to show, for the purpose of description or identification,, that they remained for two weeks in the same condition they were at the time of the accident she. should have so indicated to the court. ■ ■ •. Upon the evidence adduced we are of opinion the nonsuit was proper and that the judgment and order should be affirmed. With costs. ■ Smith, P. J:, and Sewell, J., concurred in memorandum;. Kellogg and Betts, JJ., dissented, the latter in opinion.