Smith v. New York & Queens Electric Light & Power Co.

Jenks, P. J.: The judgment and order are affirmed, with costs. There is no feature of the ease that justifies discussion save the contention of the appellant that the case should be disposed of upon the authority of 889 Mullin v. Genesee County El. L., P. & Gas Co. (202 N. Y. 275). The two cases may be discriminated. The court say in Mullin's case that the jury could have found the casualty was due to the negligent setting of the pole and its setting in low, marshy earth, both attributable to the negligence of Mullin’s fellow-servants, and that as such work was part of the construction work in which Mullin was engaged, this negligence was but a detail of Mullin and his fellows’ common employment, which in process created the place, and the rule of Citrone v. O'Rourke Engineering Const. Co. (188 N. Y. 389) must be applied. In the case at bar the place of work was a pole that was old, rotten and decayed below the point where it entered the earth. Neither Smith nor his fellows in doing the work made the pole more old, rotten or decayed, nor in any way directly disturbed the pole. The negligence attributed to the defendant and submitted to the jury was the omission of the duty of reasonable inspection of the pole. It is true that from the circumstance that the pole did not fall for some minutes after Smith ascended it, and then only after all but one of the old wires had been removed, one may infer that these wires afforded some stability to all of the poles over which they extended. But they were neither used nor designed for that purpose, and the support, if any, thus afforded was but accidental. The proximate cause of the casualty was the decayed and rotten condition of the pole. (Walsh v. New York & Queens County R. Co., 80 App. Div. 316, 319, affd., 178 N. Y. 588.) Burr, Thomas and Rich, JJ., concurred; Carr, J., not voting. Judgment and order affirmed, with costs.