People's Telephone Co. v. Conant

KOHLSAAT,- Circuit Judge (after stating the -facts as above). This case is practically on all fours with Bell Telephone Company v. Detharding, 148 Fed. 371, 78 C. C. A. 185. .lt appears from the undisputed evidence >that plaintiff’s decedent was of matur'd.age,.and 627 fairly well educated. He was possessed of ordinary native and business intelligence. He had, prior to the accident, been engaged in and about electrical plants, and was familiar with and versed in the dangers attending telephone and light .wires. He had been engaged as a “trouble man” in that service, wherein he was obliged to deal with situations of like risk with that here involved, and was also notified that the task was dangerous. There was no hidden danger at the place of the broken wire. He saw that the telephone wire was strung above the light wire, as was the case in Telephone Company v. Detharding, above cited. He knew that the former wire would take the current from the light wire, were it allowed to rest upon it. He knew that neither of them was insulated for other than weather protection purposes, and that the situation was a dangerous one. This is plainly shown by the care and precaution he took in getting the nonconducting marline for the purpose of dragging the broken wire across the light wire. Even had he been unable to see these dangers, the shock he received when upon the cross-arm, to which he sought to fasten the telephone wire, or where he sought to splice it to the west end of the break, was indubitable notification that the telephone wire took the light current from the latter wires when resting thereon. Indeed, his main effort was to draw the former taut, so as to lift it from the latter. The circumstances seem to indicate that, while pulling on the marline as he walked backward'to the pole, to which he might attach the marline and hold the telephone wire free of the light wire, his person in some way came in contact with the latter before it was clear of the light wire, and when it was taking the light current from the light wires, and was shocked to death. As was said in Telephone Co. v. Detharding, supra, he was seeking to remedy the very trouble which killed him. The present case is even stronger for the defendants than that just cited. There he could not see the disarrangement of the wires which carried death. Here he knew that, if the thing happened which did happen, his life would be in jeopardy. He was advised that he could have a man to help him, if he desired. Whether or not some other manner of stringing the two sets of wires would have been generally safer or more usual is not established from the evidence. Even had it been, it would not have been of moment here, because the danger was not only apparent, but clearly demonstrated, to decedent. The evidence entirely fails to disclose any negligence on the part of the defendants, or either of them. Hor does it show negligence on the part of plaintiff’s decedent. So far as can be gathered from the evidence, the death resulted from one of those accidents for which no one was responsible. Whatever the cause, it was, so far as disclosed in this record, one assumed by the decedent, for which.his administrator may not recover. The motion to take the cause from the jury should have been granted. The judgment of the Circuit Court is therefore reversed, and the cause remanded for a new trial. •