Flood v. Western Union Tel. Co.

• Decision Date: 01 March 1892
• Citation: 30 N.E. 196,131 N.Y. 603
• Parties: FLOOD v. WESTERN UNION TEL. CO.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 603

30 N.E. 196

FLOOD

v.WESTERN UNION TEL. CO.

Court of Appeals of New York.

March 1, 1892.

Appeal from supreme court, general term, fourth department.

Action by Mary Flood, as administratrix of Timothy Flood, deceased, against the Western Union Telegraph Company for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence in keeping a defective cross-arm on one of its telegraph poles. Judgment was entered for plaintiff in the circuit court on a verdict for $3,000, and was affirmed by the general term. 15 N. Y. Supp. 400. Defendant appeals. Reversed.

ANDREWS, GRAY, and O'BRIEN, JJ., dissenting. 15 N. Y. Supp. 400, reversed.

Louis Marshall, for appellant.

A. T. Benedict, for respondent.

EARL, C. J.

The plaintiff seeks to enforce liability upon the defendant for the death of the intestate, because of its negligence as to the cross-arm which broke under his weight. We have carefully read and weighed the evidence contained in this record, and are unable to find any showing of culpable negligence adequate to sustain this judgment. The defendant did not insure the safety of its employes. It was bound only to use reasonable and ordinary care to provide for them a safe place to do their work, and they assumed the ordinary risks of the employment in which they were engaged. The cross-arms on telegraph poles, manifestly from their usual size and strength, are not intended to bear the whole weight of any person, and yet the evidence shows that persons engaged in fixing them, and placing wires upon them, do sometimes rest their weight upon them. It must always be a hazardous venturefor a man to sit on the outer end of one of these cross arms, engaged in pounding near the end with a hammer. When the arm is new and perfect, this may be done with safety; but it must always be attended with great danger, and it is unnecessary, as the work can be done without resting the whole weight upon the arm. There was no negligence in furnishing and putting up this arm originally. It was of the material and of the size and apparent strength and safety then in use by all telegraph companies. And, so far as appears, such arms have been found adequate for every purpose. For some time before the accident, the defendant had been using larger and stronger arms to carry heavier wires, and only for that purpose. There was a system of inspection for the arms, when purchased, and it does not appear that there was anything in the external appearance of this arm, when new, which indicated any defect or weakness, or that there was any defect therein discernible by any ordinary inspection. This arm had been in use for about six years, and during all that time had perfectly answered its purpose. There was no proof showing how long such an arm ought to last or be used. The defendant had a system of inspection which appears to have been all that was practicable. Its inspectors went along the line of telegraph poles and wires, and carefully looked at them, and tried the poles to see if they were still strong and adequate. They were provided with arms, so that, if they discovered any that were insufficient, they could replace them. They were not expected to climb up every pole,...