Long v. Johnson County Telephone Co.

McClain, J. It appears that the plaintiff was an experienced lineman, who at the time of the accident, in February, 1904, had been in the employ of the defendant company for two or three weeks. He was engaged at the time of the accident with other employes in erecting a large circle pole about sixty-five feet high, and transferring to it a messenger wire serving to support a cable containing many telephone wires; the purpose of the operation being to have the cable run up the new pole to the circle at the — 338 — top. This general undertaking had been inaugurated before plaintiff entered the employ of the defendant company, and the messenger wire had been stretched from the east along a row of poles extending east and west through an alley to a pole standing about four feet from where the new pole was planted by plaintiff and others, and having been stretched by means of pulleys and tackle, had been clamped to the old pole about thirty-four feet from the ground, and attached to a “ stub ” about seventeen feet high and thirty-five feet west of the old pole where the messenger wire terminated. The work had been conducted under the direction and control of one Leedon, the foreman of the defendant company, in charge thereof. In the operation of attaching the messenger wire to the new pole, which was west of the old pole and between it and the “ stub ” to which the messenger wire was fastened, pulleys and tackle had been used to raise the messenger wire to the proper height on the new pole to correspond to the place where it was clamped to the old pole. In this operation Leedon, who was on the ground while plaintiff was on the old pole giving information as to whether the messenger wire was raised high enough on the new pole, was advised by plaintiff that the messenger wire had not yet been raised to a proper height; but, this being questioned by Lee-don, who told plaintiff that he could not “ see straight,” plaintiff had acquiesced, and Leedon had directed the attachment to be made to the new pole, and thereupon plaintiff had loosened the clamp holding the messenger wire to the old pole. On the following day plaintiff, by direction of Lee-don, went up the old pole to take off two or three cross-arms which were rendered unnecessary by the fact that the wires coming from the east and terminating at the old pole had been superseded by the cable, and in removing the second cross-arm, which was just under the clamp to which the messenger wire had been attached, relieved the pressure of the messenger wire which had rested on this cross-arm, so that the pole which had been held bent over toward the — 339 — west by tbe messenger wire sprung eastward at the top, giving to plaintiff, who was suspended by his belt and safety strap, a jerk, causing one of the snaps of his safety strap to break, as the result of which he fell backward to the ground and sustained severe injuries. 1. Master and servant negligence of master: evidence. The negligence of the defendant, as claimed by plaintiff, consisted in the failure of Leedon to advise him that the pole was sprung over to the westward at the top, so that the release of the messenger wire by the removal of the cross-arm would cause it to spring east-war¿ an(j give -¿he jerk which occasioned his fall. It is evident that, if plaintiff was in as good a situation as Leedon to know what the consequence of taking off the cross-arm might be expected to be, then plaintiff assumed the risk of the operation, and was not entitled to recover; while, if Leedon knew of a danger involved in the operation not apparent to plaintiff, and did not advise the plaintiff of such danger, then the defendant was chargeable with negligence through the omission of Leedon, and there was no assumption of this particular risk on the part of plaintiff. As to this vital question, the testimony of plaintiff was that, while the old pole was bent to the westward, so that it was two feet nearer to the new pole at the top than at the bottom, he had no reason to suppose that this was not due to a natural bend in the pole; that when, on the day before the accident, he released the clamp holding the messenger wire to the old pole, the wire was still resting on the cross-arm, and there was no indication that the messenger wire was still holding it bent to the westward; and that he had no reason to suppose that the release of the cross-arm involved any danger that the pole would spring eastward. It appears front 'the testimony of Leedon, who was examined as a witness for the plaintiff, that when the messenger wire was first stretched, before plaintiff had entered the employ of defendant, the top of the pole was bent westward to some extent, and it was caused to “ buckle ” by the downward pressure of the mes — 340 — senger wire as it was stretched for attachment to the “ stub.” But he testified that he had no knowledge that the messenger wire was resting on the cross-arm, and had reason to suppose that when the clamp was released there was nothing to prevent the pole resuming its natural position, so that, when he directed plaintiff to remove the cross-arm, he did not anticipate that the pole would spring back as the result of that operation. The whole controversy was thus narrowed down to the question whether Leedon was negligent in directing plaintiff to remove the cross-arm without advising him of any possible danger which might reasonably have been known to him, but was not known to plaintiff, that the pole would spring when the cross-arm was removed. The essential fact, however, was that the pole had been sprung to the west and “ buckled,” to Leedon’s knowledge, by the operation of stretching the messenger wire when it was first attached to the stub, and there was nothing to indicate this fact to plaintiff, and we think that as a reasonably prudent man, familiar with such work, Leedon ought to have known that the pole would spring back when released, and, as he had not observed or been advised that it had regained its natural position on the release of the clamp, he should have inferred that it was still held bent to the westward and “ buckled ” by some pressure on the cross-arm, and should have advised plaintiff of the danger that, when the cross-arm was removed, the pole might spring, and cause plaintiff a jar, imperiling his safety. The testimony for plaintiff shows that the top of the pole did spring to the eastward about two feet, so that when it thus regained its normal position the distance from the new pole at the top was substantially the same as at the bottom. Counsel for the appellant argue with much cogency the-incredibility of the testimony tending to show that, after the clamp was removed which held the messenger wire to the old pole, the pole should remain “ buckled ” and bent over to the westward with the messenger wire simply resting or — 341 — binding upon the top of the cross-arm, and contend that Lee-don bad no reason as a prudent man to assume any such situation. They claim, also, that it would have been impossible to pull the top of the pole over to the west to any such distance by the tightening of the messenger wire when first stretched, and that it was therefore equally impossible that the top of the pole could spring back to the eastward any such distance when the cross-arm was released, and they insist that this impossibility is demonstrated by the fact that, when the messenger wire was stretched, the pole had attached to it at least twenty-four wires coming from the east, which terminated on its cróss-arms and were .therefore wrapped around the insulators, which wires would have been broken by so great a bending of the pole to the westward, and that, when the cross-arm was taken off, there were at least six wires extending on to the west (which, by the way, had been strung after the stretching of the messenger wire, for all the wires had been broken by a sleet storm intervening between the time the messenger wire was stretched and the commencement of plaintiff’s employment), which must have been broken by so great a spring of the pole to the eastward. It must be said, however, with reference to these wires extending westward at the time of the accident, that they did not terminate on the cross-arms of this pole, but were simply held to the insulators by short pieces of wire wrapped around them, so that it is not at all impossible that these wires should slip through the fastenings as the pole sprung to the eastward. However this may be', it is evident that these conditions and circumstances were for the jury to consider, in determining whether the accident happened as the evidence for plaintiff tended- to show, and we are in no situation to say that it was impossible that the pole was so far buckled and bent westward by the stretching of the messenger wire and held in that situation, after the loosening of the clamp, by the pressure of the wire upon the cross-arm, that when released it should spring eastward and cause peril — 342 — to plaintiff. Nor are we prepared to say that Leedon, knowing that the pole had been “ buckled ” and sprung to the westward by the tightening of the messenger wire, should not have anticipated just what plaintiff testifies to have resulted when the pole was no longer held in tension by the messenger wire. What it is most difficult to account for is the fact that, after the loosening of the clamp, the pole should have still been held in tension by the pressure of the messenger wire on the cross-arm; but, the general danger involved in the release of the pole from the messenger wire being known to Leedon, we think he should have warned the plaintiff thereof,-and should not have assumed that the danger was removed by the loosening of the clamp, in the absence of any information, by observation or otherwise, that the pole had resumed its normal position. This general danger was unknown to plaintiff, unless he is to be charged with knowledge thereof by reason of the fact that, on the day before the accident, he observed that the guy wires from the old pole to the “ stub,” which had been stretched before the stringing of the messenger wire, were loose, indicating the possibility that the messenger wire held attached to the stub, and there was. nothing to indicate the pole bent further to the westward than it had been when first erected. But he knew nothing about these previous conditions, and we do not think that the mere slackness of the guy wires would be a sufficient warning to him that the pole was in tension by reason of the messenger wire. The very difficulty which we have in determining what Leedon and plaintiff, respectively, ought to have assumed and anticipated in view of the knowledge which each had, makes it proper that we should abide by the conclusions of the jury. These questions were all properly referred to the jurors, and they were in as good a situation to reason about them and estimate the probability or possibility of any particular result and the credibility of the evidence as to what did cause the accident as we are. Indeed, they — 343 — were in a better situation from having heard the testimony of the witnesses. It is elementary that questions of doubt as to the facts are to be determined by the jury, and not by the appellate court. 2. Instructional refusal. Having thus indicated the issues of fact which were primarily for the determination of the jury, there is little occasion for amplification as to the rules of law applicable to the case. The substantial complaint for appellant is that the court erred in not taking the case from the jury on the evidence, and in not giving to the jury certain instructions asked for the appellant, which, if given, would almost necessarily, under the facts, have required a different verdict. No complaint is made of the instructions given, and the court could not have given those which were asked and refused without substantially deciding the case against the plaintiff on the testimony. As the evidence was, in our judgment, such as to sustain the verdict rendered, it was not error to refuse instructions which must necessarily have led to a different result. 3. SAPE PLACE TO work: liability of master There is no substantial conflict between the counsel for the two parties as to the law applicable to the issues of fact. Counsel for appellant cite cases in support of the proposition that the duty of the master to provide a n i T T 1 ,n -1 saie place has no application where the place becomes unsafe during the progress of the work. This is undoubtedly sound. See Oleson v. Maple Grove Coal & Mining Co., 115 Iowa, 74; American Bridge Co. v. Seeds, 144 Fed. 605 (75 C. C. A. 407); Bedford Belt R. Co. v. Brown, 142 Ind. 659 (42 N. E. 359); Holloran v. Union Iron & Foundry Co., 133 Mo. 470 (35 S. W. 260). But, in view of the preceding statement as to what the evidence tended to show, it is clear that the unsafety of the place where plaintiff was told to work did not arise by reason of his loosening the clamp and detaching the cross-aim, hut by reason of a previous condition known to Leedon and not known to him, which rendered it unsafe for him to — 344 — dó the thing he was directed to do. He did not cause the dangerous condition, but it already existed. With reference to assumption of risk, it is fundamental that a risk not known to the employé is not assumed, and it is unnecessary to explain the cases on which appellant relies. They are distinguished by a recognition of this elementary principle. 4. Safe place to work: warning: care. It is true, as contended for appellant, that the ordinary care required of the master does not,, involve the anticipation of every possible contingency which may happen, but only such as are likely to occur; but, if Lee-u d _ _ don knew that the pole had been bent to the x westward by the stretching of the messenger wire, he was bound to anticipate that it'was likely to spring back when the wire was released, and he might reasonably have anticipated that plaintiff, suspended near the top of the pole by a safety strap, his feet pressed against it and supported only by the usual spurs, would be put in danger by the springing back of the pole to its normal position. Assuming that Leedon knew that the pole was held bent by the messenger wire, the result of its release was not one which he could not have reasonably anticipated. At any rate, the question was for the jury, and we cannot say that a reasonable man would not have anticipated the result. On the whole record, we are satisfied that there is no occasion to interfere with the verdict and the judgment based thereon. The evidence that after the accidént the top of the pole was nearly four feet away from the new pole, while it was only about two feet distant just before the accident, is too persuasive to justify our indulging in the assumption that it was impossible that the old. pole could have been held so far bent over by the tension of the messenger wire on the cross-arm, and could have sprung back so far when that tension was removed, and we are satisfied that the question was one for the determination of the jury. The judgment is affirmed.