Davidson v. Toledo Home Telephone Co.

Richards, J. John H. Davidson, the decedent, was an employe of The Toledo Home Telephone Company as a lineman and lost his life as a result of an injury received on December 16, 1913, by falling from a pole of that company located near West Woodruff street in the city of Toledo. It is admitted that the company had in its employment a large number of workmen and had not paid into the state insurance fund the premium provided for by the workmen’s compensation law. At the close of the evidence offered on behalf of the plaintiff, the court, on motion, directed a verdict for the defendant company, and on that verdict judgment was rendered. The petition alleges that in the performance of his duty as a lineman decedent had climbed a pole of the company, and in connection with a fellow-workman was making certain repairs. It is further averred that the decedent, to steady himself upon the pole in the way that had been customary, placed his leg against or upon a guy-wire, and that the guy-wire suddenly broke and he was precipitated to the ground a distance of about 30 feet. It is averred that it was and had been customary for linemen in performing that duty to use the guy-wire as he was doing, that that custom or usage was well known to the company, and that this guy-wire was old, rusty and defective. [239] The plaintiff in undertaking to make out a case offered evidence for the purpose of proving the practice or custom of workmen engaged in the performance of such duties as those for which decedent was employed to use the guy-wires for the purpose of supporting themselves while performing similar duties on poles of the defendant company. This evidence was rejected, and the plaintiff not being allowed to introduce evidence of the usage or custom of devoting the guy-wires to this purpose it resulted that the trial judge directed a verdict for the defendant. Much of the evidence which was offered on this branch of the case was incompetent and was rightly rejected, but a majority of the court are of opinion that some of that which was rejected was competent and should have been received. The trial judge appears to have entertained the view that the existence of a custom or usage was not a matter of fact to which a witness should be permitted to testify. We hold, however, that a witness who is properly qualified should be allowed to testify as to the existence of a custom or usage of which it is shown he has knowledge, and that such testimony is not matter of opinion but is as to the existence of a fact. One Louis J. Higgins was called as a witness and it developed that he had been employed in line work for The Toledo Home Telephone Company from about February, 1912, to September, 1913, and was familiar with the method^ in which such work was ordinarily performed by linemen in the employment of that company. He was asked this question, “What, if any, use was customarily made of the guy-wire upon the poles like the one from [240] which Mr. Davidson fell, by the men at work on the pole, to support themselves?” This question was objected to by counsel for the defendant, whereupon the plaintiff offered to prove by the answer of the witness that the men did the work customarily by leaning against the guy-wire, or by putting their leg over it, as they might find it convenient, to help themselves in doing their work'. The trial judge, in sustaining the objection, stated that the objection was not only to the form of the question, but also to its calling for a conclusion of the witness. We think the court erred to the prejudice of the plaintiff in sustaining the objection to this question and other questions’ of like character. The examination of the witness showed that he was testifying, or attempting to testify, as to the manner in which linemen ordinarily supported themselves on poles in the performance of their duties at and before the date of the decedent’s fatal injury. If this evidence and other of like character had been admitted and had shown that the practice was uniform, extending over such a period prior to the injury as would authorize the jury to find that the company knew the guy-wires on its poles were being used for that purpose, then a question of fact would have been raised as to the negligence of the defendant company. The evidence, if received, would have tended to show such practice, and we think it was prejudicial error to exclude it. The primary purpose of a guy-wire is, of course, to be what its name indicates, and thus furnish support and stability to the pole, but we suppose it is competent to show by evidence, if it is a fact, that the guy-wire is commonly used for an [241] additional purpose, for instance, to furnish support and stability to workmen while on, the pole; and if the evidence should show that the guy-wires of this company were commonly devoted to that additional purpose, at and before-the fatal injury to the decedent, and to the knowledge of the company, then the inquiry would properly be made whether, in view of such general use, the company was guilty of any want of ordinary care in maintaining the guy-wires, and whether, in view of such evidence, the injury could reasonably be anticipated. We do not mean to intimate that the evidence was of such a character as would have justified the jury in finding the existence of such practice or custom, but only that the evidence tended to show the same and should have been received. It is insisted in argument by counsel for the defendant in error that the result reached in the court of common pleas is required by the decision of the supreme court in The Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 Ohio St., 27. Much similarity exists between the two cases. In that case, however, the doctrine, of contributory negligence was applicable, and to that extent the remarks of the supreme court are not pertinent to the case at bar. It will also be noticed that no attempt was made in that case to show by evidence that the appliances on the pole were devoted to any other than their primary purpose. In the course of the opinion Shauck, J., speaking for the court, uses the following language: “In the exercise of such foresight would it have been foreseen that these conditions, inaccessible to persons not engaged in the dangerous occupation [242] of maintaining the lines,. might naturally lead to injury to those so engaged? The obvious and known purpose of guy wires is to give stability to the poles to which they are attached. The obvious and known purpose of the stirrups or steps, with which this pole was supplied, was to furnish the means of ascent and descent to those who were charged with maintaining the lines. * * * In view of the considerations actually presented, can it be said that the injury to the decedent was a consequence to be anticipated in the exercise of ordinary foresight ?” The court in that case very properly concluded that the injury could not reasonably be anticipated and therefore held the company not liable, and the same result would doubtless be reached in the case at bar unless by the evidence it can be made to appear that it was common practice, at and prior to the date of the fatal injury to the decedent, to use the guy-wires in the manner claimed, and that the existence of such practice' was known to the defendant company or should have been known by it in the exercise of ordinary care. It thus becomes apparent that the existence of a general practice to use the guy-wires in that manner was one of vital importance. For the error in excluding evidence offered by the plaintiff on that subject, and for directing a verdict for the defendant, the judgment will be reversed and the cause remanded for a new trial. Judgment reversed, and cause remanded. Chittenden, J., concurs.