Little v. Hyde Park Electric Light Co.

Loring, J. The plaintiff’s case was that the spike in question was not a suitable spike for the purpose for which it was used, and that it was not properly driven into the pole. But in testifying that the superintendent promised a year before the accident to take out all driven spikes and substitute [388] screw spikes, the plaintiff admitted that he knew that driven spikes were then in the poles. It is true that he did not admit that he knew that driven spikes of the kind in question were in use, and there was evidence that they were more dangerous than bevelled driven spikes. But he admitted in terms that “ steps getting loose was not an infrequent occurrence during the time of my employment,” and “ I would tell a step was loose by the feeling of it when I took hold of it, I suppose.” The rest of the evidence touching on the plaintiff’s due care is as follows: . The plaintiff "had been in the defendant’s employ as a lamp trimmer for eleven years. As such it was his duty to climb one half of the one hundred and thirty-nine poles belonging to the defendant, one half of them each day, except on moonlight nights, and on those every three to five days. When the plaintiff’s time was not wholly taken up trimming the lamps because there was a moon, he worked as a lineman in making repairs, including the taking down and setting up of poles. In that connection he had seen holes bored for spikes and new spikes put into poles, although in his testimony he did not admit that he personally had bored more than one hole for the driving of "a spike, or had driven more than the one spike for which he had bored the hole. He testified that it was his duty to make a daily report on a blank furnished by the defendant for the purpose, and that one of the headings pn this blank was: “The following repairs are heeded on the circuit.” He also testified that it was his duty to put upon that blank anything that might be seen to be needing repairs. He further testified that if he found a pole where a step was loose which he could not repair himself (although he did not think he ever had been told to do it) he thought he ought to report it and he did report it. One of the plaintiff’s witnesses, who had been assistant superintendent but had left the company’s employ four years before the accident,, testified that the plaintiff “ was not supposed to look and see, or to test them [the steps] to see whether they were loose or not. The foreman or some one in that capacity is supposed to know how his poles are.” But in the enumeration of the employees made by a clerk, another of the plaintiff’s witnesses who was in the defendant’s employ in 1900, there did not [389] seem to be any one but the lamp trimmer employed to ascertain what things needed repair. Under these circumstances the plaintiff was not in the exercise of due care in throwing his weight on the step in question without seeing that it was not loose. The case is not unlike O'Brien v. New York, New Haven, & Hartford Railroad, 180 Mass. 403. The plaintiff relies on Chisholm v. New England Telephone & Telegraph Co. 185 Mass. 82. The difference between the two cases is that in that case tlfere was no evidence that the pin in question was loose, or that pins getting loose was not an infrequent occurrence. For a similar reason Carroll v. Metropolitan Coal Co. 189 Mass. 159, is not like the case at bar. There the plaintiff had no duty to look for a defective rung, or to suppose that the rung in question was not safe. Exceptions overruled.