McGorty v. Southern New England Telephone Co.

Hall, J. The substance of the plaintiff’s reasons of appeal is that the court erred in deciding, upon the facts found, that the defendant was not guilty of negligence, and that the plaintiff was entitled to recover only nominal damages. In support of this claim he cites Wilson v. Willimantic Linen Co., 50 Conn. 433, 469; McElligott v. Randolph, 61 id. 157, and other authorities, which lay down the general rule of law that it is the duty of emplo3mrs to use ordinary care to provide for their employees safe places in which to work and safe appliances with which to perform their work. An examination of the record shows that the principle stated in these cases cannot avail the plaintiff in this action. The particular acts which it is said the defendant negligently failed to perform, in order to render the place where the plaintiff was working reasonably safe, were the testing of the poles which were being removed, and the supporting of those which were found to be insecure, before the linemen — 640 — were ordered to work upon them. The complaint avers that it was the duty of the defendant to so inspect and support the poles, and set forth, as the facts upon which such duty is predicated, that “ it was a rule and custom of said defendant company, that whenever an old line of poles was being supplanted by new poles, to have said old poles tested at their base for the purpose of ascertaining whether or not they were rotted and unsafe or dangerous in any way for a lineman to climb . . . for the purpose of removing cross-arms or wires from the same; and in case any of said poles were found to be rotted at the base, to guy the same with wires or ropes to prevent them from falling while the linemen were at work upon the same; that said rule and custom was known to the plaintiff, and he supposed and believed that said pole had been properly tested by the defendant company before ordering him to climb the same, . . . and that plaintiff had no knowledge that said pole was rotted and defective at its base; that the defendant wholly failed to test said pole as had been its custom and rule prior to that time; . . . that said pole was not guyed by wires or ropes in anjr way, . . . and that the defendant knew, or by the exercise of due care could have known, that said pole was rotted at its base, and that the same was incapable of sustaining any weight upon it.” There are no facts stated in the complaint which indicate that any special mechanical skill was required to discover the defect in the pole, or that the linemen, of whom the plaintiff was one, were not competent persons to inspect and test the poles; or that any of the officers or other employees of the defendant possessed superior qualifications or had better means or opportunities than the plaintiff to ascertain whether the condition of the old poles was such as to render it safe for the workmen to climb them. The plaintiff made no examination of the base of the pole which fell. He knew that it was not guyed or supported in any manner. He says that by the exercise of ordinary care its decayed condition could have been detected, but that from his knowledge of the rule and custom of the defendant to inspect and secure the old poles before linemen were sent to — 641 — work upon them, he believed that this pole had been properly tested and found to be safe, and for that reason made no examination himself. The complaint makes these facts the basis of the defendant’s alleged liability. As the testing and supporting of the old poles, from the nature of the work, might, either by the terms of the contract of employment or from other facts and circumstances, have been either a duty of the employer or one of the duties of the plaintiff, and as the plaintiff could not in an action at law recover compensation for an injury resulting from his own negligent failure to perform a duty which he was employed to perform, it was essential to the plaintiff’s case that he should set forth in his complaint the facts showing why this duty devolved upon the defendant, and why the exercise of due care did not require the plaintiff to examine the pole in question. Whether in this case the plaintiff’s injury resulted from his own or from the defendant’s negligence, depended therefore upon the truth or falsity of these averments ; and the determination of the question of whether it was the rule and custom of the defendant, as alleged, to inspect and secure the old poles before they were climbed by the linemen, or whether it was one of the duties of the linemen to themselves test the poles and if found unsafe to secure them, became decisive of the plaintiff’s alleged right to rely upon his belief that the poles had been tested by the defendant and found to be safe. These allegations of fact, upon which the averments of duty and of negligence upon the part of the defendant depend, were contested upon the hearing, and having been decided, as appears by the finding, adversely to the plaintiff, the question of negligence has thus been determined as a question of fact. The trial court has found that it was not the rule and custom of the defendant to inspect and test the poles, but that it was the rule and custom, in this branch of the work, that “ each lineman should look out for his own safety in climbing poles; ” that each lineman should inspect and test the poles for himself and judge of their safety, and that suitable appliances — 642 — were at hand for testing an'd securing poles. That the plaintiff knew this rule and understood that testing and inspecting were a part of his duties, must be presumed from the fact that he was a lineman of fourteen years’ experience, and in that capacity had formerly been in the employ of the defendant. The finding of the trial court is thus conclusive upon the question of negligence. It shows that the plaintiff, with a knowledge, when he was ordered to climb the pole in question, that it was the duty of no one but himself to decide whether it was safe, and that if he doubted its safety that he was at liberty to support it by appliances furnished by the defendant for that purpose, chose rather to rely upon the safe appearance of the pole and the assurances of his fellow-workmen, and to take the risk of the pole being sound, without making a proper examination himself. If the accident occurred from the negligence of any person it was through, the plaintiff’s own fault. He was the person employed by the defendant to examine the poles and see that they weve safe to work upon. As he was able to perform both the work of inspecting and climbing, the defendant ought not to be required to employ some other person than the linemen to test the poles. We have no occasion, upon the facts found, to consider whether the foreman Phelps was a fellow-servant of the plaintiff, a question discussed in the briefs of counsel. The accident did not occur from the negligence of Phelps. It is true he directed the plaintiff to climb the pole, and in answer to the latter’s inquiry truthfully said, as might any other lineman who had tested the pole for himself, that he had been up the pole, and expressed his opinion that it was safe. But the plaintiff knew that it was not a part of the duty of the foreman to instruct an experienced lineman as to the safety of a pole he was about to .climb; and from the facts found we must assume that although he kuew that in obedience to the order of the foreman he was required to do the work upon the pole, yet he was to rely upon his own judgment in determining whether it was safe to climb it without testing it or — 643 — supporting it, and that it was his right to secure the pole before climbing it if he doubted its safety. It cannot be laid down as a proposition of law, as seems to be claimed by plaintiff’s counsel, that the linemen of telegraph and telephone companies have a right to rely upon the soundness and safety of the poles upon which they are working, and that it is the duty of such companies to inspect and test poles and support sueh as are insecure, before permitting their linemen to climb them. Whether it is incumbent upon the master or the servant to perform such a duty is usually a question of fact depending upon the terms of the contract of employment, the servant’s knowledge of the hazards of the work in which he is engaged, his ability and opportunity to discover the dangers to which he is exposed and to avoid them, and upon other circumstances. Employers have a right to decide how their work shall be performed, and may employ men to work with dangerous implements, and in unsafe places, without incurring liability for injuries sustained by workmen who knew or ought to have known the hazards of the service which they have chosen to enter. Hayden v. Smithville Mfg. Co., 29 Conn. 548; Dixon v. Western Union Tel. Co., 68 Fed. Rep. 630; Greene v. Western Union Tel. Co., 72 id. 250; Flood v. Western Union Tel. Co., 131 N. Y. 603; Cumberland Telephone Co. v. Loomis, 87 Tenn. 504. In the last named case, which was an action for damages for an injury sustained by the fall of a telephone pole, the trial court charged the jury that the “plaintiff (defendant in error) had a right to assume that the pole upon which he was ordered to work in cutting away the dead wire was safe and suitable, and of sufficient strength to support the wires and cable suspended thereon, together with his weight, and it was not Loomis’ duty, when sent to cut away dead wires, to inspect the pole.” Upon an appeal from a judgment in favor of Loomis, Judge Snodgrass, in giving the opinion of the Supreme Court with reference to the portion of the charge above quoted, said: “ The objection to this is two-fold. First, that it assumes as a matter of fact, and so decides, that Loomis — 644 — was not the employee who should have served as ‘inspector’ for the company, which was a disputed question of fact.” From the facts in the case at bar we are of opinion that the falling of the pole in question was one of the hazards assumed by the plaintiff by his contract of employment, and that the Superior Court committed no error in holding that the defendant was not guilty of negligeneé, and that the plaintiff was entitled to recover nominal damages only. There is no error. In this opinion the other judges concurred.