McGorty v. S. New England Tel. Co.

• Decision Date: 05 October 1897
• Citation: 38 A. 359,69 Conn. 635
• Court: Connecticut Supreme Court
• Parties: McGORTY v. SOUTHERN NEW ENGLAND TEL. CO.

38 A. 359

69 Conn. 635

McGORTY

v. SOUTHERN NEW ENGLAND TEL. CO.

Supreme Court of Errors of Connecticut.

Oct. 5, 1897.

Appeal from superior court, Fairfield county; Silas A. Robinson, Judge.

Action by John McGorty against the Southern New England Telephone Company to recover damages for personal injuries. Plaintiff recovered judgment for nominal damages, and appeals. Affirmed.

The plaintiff was an experienced lineman, having worked in that capacity for 14 years. He was employed as a lineman by the defendant the day before the accident by which he was injured, having been in the service of the defendant some years before in the same capacity. The duties of a lineman are to climb poles, and work at wires and cross-arms at or near the tops of telegraph and telephone poles, and sometimes to do the work of a ground-men. The work of erecting and taking down poles, and of stringing and removing wires, etc., is performed by gangs of men, usually about six in number, made up of groundmen, whose work is upon the ground, digging post holes, etc., and of linemen, and a foreman. The foreman, who is himself a lineman, gives orders to the men, directing them here and there, and keeping them all at work. He is equipped with apparatus for climbing, and climbs poles, and works at wires at the tops of poles, as occasion requires. Division superintendents oversee the work of construction, but give no instructions to the gangs as to how the work shall be performed in detail. Other officers of the defendant company are the general superintendent, having charge of all the construction work in the state, and an executive committee of the board of directors of the company. In the work of taking down and rebuilding lines, it sometimes happens that old poles have become so weak at the base as to be unsafe for the linemen to work at the top of them in removing wires and cross-arms. Poles are tested by several well-known methods to ascertain if they have sufficient strength to bear the climbers, and weak poles are made safe by braces or guy ropes. The durability of a pole is from 3 to 17 years, depending upon the character of the soil in which it stands. The pole the falling of which injured the plaintiff had been in use about 11 years. Necessary tools for testing and supporting poles were supplied by the defendant, and at this time were in a storehouse, five minutes' walk from the place of the accident. It was the custom, rule, and practice of the defendant and of other companies operating lines of wires on poles that the foreman of a gang was not charged with the work of examining the poles to determine whether linemen might safely climb them. Each lineman was to look out for his own safety in climbing a pole. He judged for himself whether a pole should be tested, and, if so, how it should be tested. He inspected and tested for himself before climbing a pole, and from his experience was supposed to be competent to judge what could be done with reference to any part of the pole. It was his privilege, when doubting the safety of a pole, to proceed to support it, without consulting the foreman, and ground-men and teamsters would go to the storehouse for necessary tools and apparatus when called for. It was not a rule or practice of the defendant, whenever an old line of poles was being replaced by new ones, to have the old poles tested at their base before linemen were ordered or permitted to climb them. An order having been given by the defendant to a division superintendent to rebuild the defendant's line in Danbury, a gang of men, consisting of a foreman (Phelps), two linemen, and two groundmen, were engaged in the work. Before the plaintiff joined the gang, most of the new poles had been set, and the work of stripping the corresponding old poles had been largely done, and the foreman and other linemen had worked at the top of the pole in question. Plaintiff commenced labor on this work on the day of the accident The pole in question looked well, and had been tested by one of the linemen, when it stood the test well. It did not occur to the plaintiff, nor to the lineman who tested the pole, nor to the foreman, that there was any danger in climbing this pole. In answer to plaintiff's inquiry if the old poles were all right, the foreman replied, "Yes, we have been up there, and taken off old wires, a hundred times." Plaintiff did not ask if the old poles had been tested. Plaintiff knew that this particular pole had been safely climbed by another lineman, and he had himself climbed it in safety an hour or more before the accident. The foreman sent the plaintiff up the pole in question to remove the remaining wires, and while he was removing the last cross-arm, at a place about 30 feet from the ground, the pole, which was rotted through a few inches below the surface of the ground, and which had been held in place by the frozen ground and the wires, fell, and the plaintiff, falling, received serious injuries. The court found that there was no negligence on the part of the defendant, and that, if the accident was the result of negligence, it occurred from the fault of the plaintiff.

James E. Walsh and Henry A. Purdy, for appellant.

John W. Ailing and James T. Moran, for appellee.

HALL, J. (after stating the facts). The substance of the plaintiff's reasons of appeal is that the court erred in deciding, upon the facts found, that the defendant was not guilty of negligence, and the plaintiff wag entitled to recover only nominal damages. In support of this claim, he cites Wilson v. Linen Co., 50 Conn. 469, McElligot v. Randolph, 61 Conn. 157, 22 Atl. 1094, and other authorities which lay down the general rule of law that it is the duty of employers to use ordinary care to provide for their employes safe places in which to work, and safe appliances with which to perform their work. An examination of the record shows that the principle stated in these cases cannot avail the plaintiff in this action. The particular acts which it is said the defendant...