Bergin v. Southern New England Telephone Co.

Hall, J. It was not unlawful for both defendants to use the same poles. Such joint use was with the consent of both companies, and at the request of the municipal authorities. It has not been shown to be necessarily attended with increased danger. By reducing the number of poles the highway is used with greater convenience. Full control of the location of such wires and structures is given to the local authorities by § 3946 of the General Statutes and § 3 of Chap. 169 of the Public Acts of 1893. The court has found that the defendant telephone company was not negligent. This is a question of fact which it has been repeatedly held cannot be reviewed by this court upon an appeal, unless it appears that the trial court did not apply the correct standard of duty in reaching its conclusion, or violated some rule or principle of law applicable to the facts as found. McAdam v. Central Ry. Elec. Co., 67 Conn. 445; Dundon v. New York, N. H. & R. R. Co., ibid. 266; Sprague v. New York & N. E. R. Co., 68 id. 345. The degree of care and duty imposed by law was apparently applied to the defendant telephone company by the trial court, in testing its conduct in regard to negligence. Neither its conclusion from the facts found, nor any ruling of the court during the trial, indicates that it did not charge the telephone company with its legal duty as to providing for its employees a reasonably safe place and reasonably safe tools and appliances for their work, and competent co-laborers. But it is said that this rule imposed upon the telephone company, as a matter of law, the duty of inspecting and testing the guy-wires, or the circuit-breakers of the electric railroad company, and that it is apparent that that duty was not placed upon the telephone company by the trial court. [65] There is no such absolute requirement of law. Whether the employer or the employee should discharge such duty must depend upon the circumstances of each particular case. In many instances either may properly perform that work;; and in some cases who should perform that duty is a question of fact to be determined by a variety of circumstances, such as the nature of the task of inspection, the skill, opportunity, and means of the workman to properly do it, and the terms of the contract of employment. McGorty v. Southern New Eng. Telephone Co., 69 Conn. 635. The facts found in the present case clearly show, and the court held, that when in the performance of the work in which they were engaged it became necessary to handle a wire of the electric railroad company, or when a contact with such wire was likely to occur, the duty devolved upon the servant and not upon the master to first ascertain whether such wire was charged with electricity. As to the negligence of the electric railroad company, the trial court has not decided adversely to the plaintiff. The extent of the injury having been shown, the plaintiff was entitled to a judgment for substantial damages against the defendant who should fail to show either that it was not negligent, as alleged, or that the injury was the result of the contributory negligence of the deceased. Sprague v. New York & N. E. R. Co., supra. In its effort to show that it was free from fault, the defend-' ant electric railroad company failed. From the facts found the trial court evidently, and we think justly, concluded that the electric railroad company, “ in the construction and operat ion of the appliances ” for using in the public streets an agency so dangerous to human life, did not take the required precautions for the safe treatment of such an agency, and “ for providing against all dangers incident to its use.” McAdam v. Central Ry. & Elec. Co., supra. But unless the court erred in holding that Delaney was guilty of contributory negligence, the plaintiff would gain nothing by a decision that both the defendants were negligent. That is the controlling question in the case, and unless the ruling of the [66] court below upon that point ought to be reversed, it seems unnecessary to consider the other questions raised by plaintiff’s counsel. The complaint alleges that it was not Delaney’s “ business ” to know the unsafe condition of the guy or span-wire. It is found by the court that in “ doing work which is dangerous by reason of the possible contact of the telephone wire with the highly charged wires of the street railway or other companies (and this, the record shows, is work which the linemen of the telephone company are frequently required to perform), the linemen do their own testing;” that they know that there are no others employed by the telephone company to do such testing, and that they are supplied with suitable appliances for testing such wires. Delaney was an experienced lineman, acquainted with the duties and dangers of his employment. As against the telephone company, his negligent failure to perform one of the duties of his employment must defeat a recovery for an injury caused by such failure. The relation of Delaney to the electric railroad company was different. As he was not their employee he was under no contract duty to test their wires or circuit-breakers. Under different circumstances he might have asstuned that the electric railroad company was performing its duty, and using suitable and safe appliances to prevent the escape of electricity from the main, or trolley wire, to the guy-wires. But when the accident happened he knew, as an experienced lineman, that such was not the fact, and that it was unsafe to act upon such a belief. He had been expressly warned of the danger of a contact with wires of this kind. Two instances upon this same work, of damage caused by the escape of electricity to the telephone wires by reason of defective circuit-breakers, had been called to his attention, and a fellow workman but a day or two before this accident pointed out to him this particular guy-wire as one from which he had himself just received a shock. With such knowledge and after such warning Delaney heedlessly pulled the wire, which he was coiling, from the arm of the telephone pole, in such a manner that it would obviously fall, as it did, upon the guy-wire, and when, [67] as the court finds, it would have been easy for him to have thrown the wire from the pole so as to avoid contact with the dangerous guy-wire. The defendant , electric railroad company can be only liable in this action for an injury caused by its negligence, to one who was himself in the exercise of ordinary care. Its negligence did not excuse Delaney from exercising such care to avoid an injury. Applying that test to the conduct of Delaney, namely, the care which a person of ordinary prudence and judgment should have exercised under similar circumstances—and we have no reason to think that any different standard was applied—the trial court has found he was not in the exercise of due care, as alleged in the complaint, and that his negligence essentially contributed to cause his injury. This conclusion of the court is final. Peltier v. Bradley D. & C. Co., 67 Conn. 42. Were it reviewable we should say it was fully sustained by the facts found. The action of the court in receiving the evidence offered to prove a discharge by the plaintiff, before he was appointed administrator, of the cause of action against the telephone company, could not have harmed the plaintiff. The court very properly refused to hold that the facts proved constituted a release. Camden v. Fletcher, 4 Mee. & W. 378; Taylor v. Moore, 47 Conn. 278. Had the court held that such facts constituted a release of the alleged cause of action, the record shows that by reason of the contributory negligence of Delaney there was no cause of action which could have been discharged. Manifestly the plaintiff was not prejudiced by the rulings of the court in permitting the hypothetical question.to Boynton ; in admitting the notice which had been served upon the electric railroad company, and in excluding proof of the declarations of Butler. We think these rulings can be sustained; but assuming that they were erroneous, as the plaintiff’s right to recover more than nominal damages is defeated by Delaney’s contributory negligence, and as these rulings could not have affected the trial or decision of that question, the plaintiff was not injured thereby and we have no occasion to discuss them further. [68] We have considered all the questions which we think are involved in the rulings and decision of the court below. At least twenty of the twenty-seven reasons of appeal assigned, seem to he unnecessary for the proper presentation of those questions in this court. There is no error. In this opinion the other judges concurred.