Cumberland Telegraph & Telephone Co. v. Loomis

• Decision Date: 11 April 1889
• Citation: 11 S.W. 356
• Court: Tennessee Supreme Court
• Parties: CUMBERLAND TELEGRAPH & TELEPHONE CO. <I>v.</I> LOOMIS.

11 S.W. 356

CUMBERLAND TELEGRAPH & TELEPHONE CO.v.

LOOMIS.

Supreme Court of Tennessee.

April 11, 1889.

Error to circuit court, Shelby county; L. H. ESTES, Judge.

Action by Henry J Loomis against Cumberland Telegraph & Telephone Company. Judgment for plaintiff and defendant brings error.

Surley & Wright, for plaintiff in error. Watson & Hirsch, for defendant in error.

SNODGRASS, J

The defendant in error sued for damages consequent upon an injury received while in the service of the telephone company and repairing its lines, 23d January, 1888. He was engaged in the removal of useless or dead wires, when the post upon which he was while doing this service broke off, and threw him to the ground, whereby he was badly injured. The negligence of the company averred was in providing an unsafe and unsuitable pole. There was verdict and judgment in favor of Loomis for $5,000, and defendant appealed in error.

There are numerous errors assigned, only one of which, as it is a fatal objection, we deem it necessary to notice, and that is to the following paragraph in the charge of the court: "Plaintiff had a right to assume that the pole upon which he was ordered to work in cutting away the dead wires was safe and suitable, and of sufficient strength to support the wires and cables suspended thereon together with his weight, and it was not Loomis' duty when sent to cut away dead wires to inspect the pole." The objection to this is twofold: First, that it assumes as a matter of fact, and so decides, that Loomis was not the employé who should have served as "inspector" for the company, which was a disputed question of fact; and, second, that it does not impose upon him — rather relieves him from — the duty of ordinary care and caution, by inspection or otherwise ascertaining the condition of the pole, the extent of the danger, and guarding against it as far as reasonably practicable. The charge is in this connection open to both objections, and it is generally subject to the last, as the circuit judge nowhere charges that plaintiff's injury must not have been the result of the want of reasonable care on his part. For the errors indicated the judgment must be reversed, and the case remanded for a new trial.