Donahue v. Northwestern Telephone Exchange Co.

ELLIOTT, J. (after stating the facts as above). It is alleged in the complaint that the defendant was negligent in failing to furnish Donahue with a safe place to work and with proper instrumentalities, and to instruct and warn him of the dangers of the service he was called upon to perform. Plaintiff’s case rests upon the allegations: (1) That Donahue was an inexperienced workman, and was put at work which was more hazardous than that for which he had been employed, without proper instructions; (2) that the usual way of measuring the height of wire above the ground was by means of a tape and wire hook attached thereto, which was slipped along the wire from the hole to the point measured; (3) that pursuant to this custom, under defendant’s directions, the lineman, Ripsom, climbed the pole with the tape and hook attached to make the measurements, and that Donahue stood near the foot of the pole holding the tape, with the intention, as he had been directed to do, of slipping the same along the wire to a point immediately above where the hole was to be dug, and then making the measurement; (4) that Donahue did not know that the current was on the power company’s wires; (5) that Donahue was directed to make the measurement with the tape in question in the manner described; and (6) that Donahue did not know that the tape was a conductor of electricity, which fact was known to the defendant. The record fails to disclose any evidence which even tends to support á single one of these allegations, and the plaintiff is driven to rely upon a charge of negligence which is not alleged in the complaint. It is contended that, regardless of all these matters, the defendant is liable because the foreman, Johnson, knowing that the current was on the power company’s wires, stood by and failed to warn Donahue and direct him to drop the tape. Leaving this claim for the present, we will examine the evidence bearing upon the allegations of the complaint. 1. Donahue was a man of mature years, who had been engaged in similar work for at least fourteen years. He had been working — 438 — for the telephone company a little more than a year, prior to which he had worked for the Western Union Telegraph Company as a laborer and lineman for about twelve years. The witness Webster, who was called by the plaintiff as an expert, testified that Donahue’s experience in line work had been about as extensive as his own. The evidence does not show that Ripsom and Donahue were engaged in measuring the height of the wire above the ground in the usual and customary way. In fact, we do not find a word of evidence which tends to show that any such custom or method existed. There is no evidence tending to show that Donahue was- ever hired or directed to aid Ripsom in making the measurement in the manner described. On the contrary, it appears that no such measurement was necessary, and that the assistant foreman, Johnson, expressly forbade the: men to make the measurement, or to do what they were attempting to do when the accident occurred. Johnson was called by the plaintiff, and cross-examined under the statute; but his evidence in this respect is undisputed. He testified that, when he saw Ripsom and Donahue preparing the tape line, he said to them, “What are you going to do?” They were standing right alongside of me, about four or five feet away from me. * * * They said they were going to measure the pole. I thought they were going to measure that new pole that was lying on the ground. Instead of that, why, they walked over to this pole where the accident happened. * * * They walked half way over to the pole, and I says, “What are you going to do?” They says, “We are going to measure that pole.” I says, “Never mind, that pole don’t have to be measured.” * * * And Donahue turned around, kind of laughing at me, and he walked over towards the pole. Ripsom got over towards the pole with his — I don’t know if it was the right or left — ■ foot on the pole. I says to him, “Don’t go up on the pole.” So he started off. He got half way on the pole., I called him again. I says, “Ripsom, whatever you do, don’t go up on the pole.” I says, “If you do, you will get1 killed,” and he turned around, looked at me in kind of a laughing way, and he answered me just like this, “To hell; I’ve seen them wires before I seen you.” So he walked up on the pole near to the wire. — 439 — At another time the same witness testified as follows: “I seen them going. I says to one of them, ‘What are you going to do?’ He says, ‘We are going to measure that pole.’ * * * They went over towards that pole * * * A. They must have been about ten or twelve feet away from me. Probably not that far, I don’t remember. Then I says, ‘Stay off of them poles, stay away from them poles.’ They kept on going. When I spoke to him that way Donahue turned around in a laughing kind of way. * * * He -didn’t say nothing; but he turned around, kind of turned his head, in a laughing way. * * * I didn’t mention Ripsom or Donahue. They were both together there when I spoke.” Again he testified: “I spoke to them again when Ripsom got •over to the pole. He stuck his foot on the pole, and was going to start to go up the pole. I spoke to him, and Í says, ‘Stay off that pole.’ So he started up, got half way up the pole, and I spoke to him again. I says, ‘Come off that pole.’ I says, ‘If you don’t come •down, you will get killed.’ ” The witness Brickley testified that as Ripsom started up the pole, he said to him: “ ‘Ripsom, I wouldn’t go up that pole if I was you.’ He never said anything, and he went up a little farther, and I says: ‘I wouldn’t climb that pole if I was you. I would wait until Hilton comes out; for he is going to bring his test set, and tell them when to shut the power off.’ He paid no attention to me, and he got up a little farther, and I says, ‘If you go up that pole you are all insky,’ and he turned around and kind of laughed at me.” Donahue was then standing twenty or twenty five feet from Brickley, and must have heard all that was said. There can be no reasonable doubt of it. The witness Montgomery testified that he heard Johnson and Brickley tell the men to “keep away from that pole.” Johnson was the foreman, and the men should have obeyed him. His statements were certainly sufficient to warn them of danger and relieve the defendant from responsibility for the results of their action, unless there was hidden danger which was known to Johnson, and not to Ripsom and Donahue. The danger was from the current in the power company’s wires, and a reasonably prudent man would have ascertained whether it was in fact on or off before taking — 440 — such risks. Both Ripsom and Donahue,knew that it was the intention of the defendant that-the power should be turned off before the work was done. Johnson had been instructed by Aldridge to go out and finish the holes, frame the poles, and get ready to set the poles when the power company shut off the current. Johnson says that he was told not to go near the poles before the power company man got there. Brickley testified that Aldridge told Johnson not to leave camp until Hilton came out to shut off the power. These instructions were given the evening before the accident, when the men were standing around. Johnson says that Donahue was about thirty feet away. Aldridge testified that, when he gave the instructions to Johnson, “Donahue was there with me, because I was talking to him and talking with Johnson at the same time.” Ripsom was not then present. Donahue knew that the current was to be cut off before the work was done. If Ripsom and Donahue had thought that the power had been shut off, they were informed to the contrary by Brickley, and Johnson’s language could have conveyed no other meaning. Nor does the evidence show that it was necessary to take the measurements. At most, Ripsom and Donahue set their judgment as to the necessity against that of the foreman, and refused to obey his positive and imperative instructions. The height had already been measured, and the results marked on the poles, by Buchholz and Ripsom. This had been done two or three days before the accident, and it is reasonably clear that the fact was known to Donahue. There is no direct evidence that any one knew that the tape was shot through with fine metallic wires. Upon the base of the tape, on the last part which would leave the box when it was unrolled, were printed the words “metallic tape.” The metallic fibers were visible upon even a slight examination. It certainly would not have been a reasonably safe appliance to furnish to the men for use in the way it was being used by Ripsom and Donahue. The tape belonged to a workman named Montgomery, and for a time was used by him in measuring holes. One day Johnson borrowed it, and after he got through with it put it in the tool box, where it remained, and thereafter was used by the men in and about the construction work. It — 441 — may thus be said that the company adopted it and authorized its use for proper purposes; but it cannot be inferred that the use to which it was put was within the contemplation of the defendant. The tape was not in the least adapted to such use, and had to be fixed up so that it could be used in that way. It was a device improvised by Ripsom and Donahue for their purpose. If a tape with a hook on the end for the purpose of being connected with overhead wires was to be used, it would, of course, have been negligence to furnish a' metallic tape; but a metallic tape was perfectly proper for measuring holes and timber, and this was all it had ever been used for, so far as the evidence discloses. Metallic appliances are used about such construction work, and are perfectly safe and proper when used for the purposes contemplated. There is no escaping the conclusion that Ripsom and Donahue were using this tape for purposes not contemplated by the defendant, and in a manner and under circumstances which could not be reasonably anticipated. The metallic character of the tape is apparent from the slightest inspection, and,for two men, familiar with the dangers connected with work around electrical machinery and appliances, to use such a tape for such a purpose under the circumstances, without first investigating and determining that it was a nonconductor, was an act of negligence which in itself would preclude recovery. When we also remember that the men were connecting themselves with a high tension wire, in the face of immediate warning and in opposition to direct orders, it is very clear that the jury reached the proper conclusion. 2. Plaintiff cannot recover on the so-called subsequent negligence of the defendant in failing to order Donahue to drop the tape after Ripsom started up the pole, if for no other reason, because the facts are not pleaded. The complaint' does not allege any negligence in this respect. Connelly v. Minneapolis Eastern Ry. Co., 38 Minn. 80, 35 N. W. 582; Morrow v. St. Paul City Ry. Co., 65 Minn. 382, 67 N. W. 1002; Jemming v. Great Northern Ry. Co., 96 Minn. 302, 305, 104 N. W. 1079, 1 L. R. A. (N. S.) 696. 3. As the plaintiff had failed to prove the case which he had pleaded, the trial court should have directed a verdict in favor of the defendant; and a new trial was properly denied after the jury had — 442 — returned a verdict in favor of the defendant on the merits. The alleged errors in the instructions become immaterial and need not be considered. This is also true of the alleged errors in the rulings upon the reception and rejection of evidence, unless the result was to exclude competent and material evidence which, if it had been received, might have required the case to go to the jury and possibly resulted in a different verdict. The evidence which it is claimed was improperly received was of little, if any, consequence. The cross-examination of the witness Aldridge, even if erroneous, was not prejudicial. The fifth assignment of error, based upon the ruling which sustained the defendant’s objection to a question which asked the witness to state the customary method of making measurements, was well taken. The plaintiff was claiming that it was necessary to measure the height of one of the poles in order to carry out the instruction to notch the pole which was then lying on the ground; but the witness had already testified that he did not know that it' was customary to measure the height in any other way than by observations. The witness had also testified that he did not know what the custom was as to obtaining the height of the wires, when new poles were 'being set under conditions such as were being considered. In view of the condition of the entire record, it is evident that the plaintiff was not prejudiced by the ruling which prevented the witness from answering the particular question. The seventh, eighth, ninth, tenth, and eleventh assignments are predicated upon rulings which prevented a witness from answering questions designed to establish the necessity for making the measurement ; but it was not, under the circumstances, for Ripsom and Donahue to determine this question of necessity. That rested with the foreman, and he expressly ordered the men not to make the measurements. The sustaining of the objection to the question referred to in the twelfth assignment was in no way prejudicial to the plaintiff. All that the foreman, Johnson, said had been detailed over and over by witnesses called by the plaintiff. The order of the trial court is therefore affirmed.