Bergin v. S. New England

• Decision Date: 30 November 1897
• Citation: 38 A. 888,70 Conn. 54
• Court: Connecticut Supreme Court
• Parties: BERGIN v. SOUTHERN NEW ENGLAND TEL. CO. et al.

38 A. 888

70 Conn. 54

BERGIN

v. SOUTHERN NEW ENGLANDTEL. CO. et al.

Supreme Court of Errors of Connecticut.

Nov. 30, 1897.

Appeal from superior court, New Haven county; Milton A. Shumway, Judge.

Action by John J. Bergin, administrator of the estate of Timothy Delaney, deceased, against the Southern New England Telephone Company and the Meriden Electric Railroad Company for the death of plaintiff's intestate, caused by defendants' negligence. Defendant railroad company defaulted, and a demurrer by defendant telephone company to the complaint was overruled. There was a judgment in favor of plaintiff for nominal damages against the railroad company only, and he appeals. Affirmed.

The complaint alleged that the defendants were, without authority, operating their systems jointly; that defendants were negligent in using the defective circuit breaker described below, and in permitting the deceased to work at the place in question, when they knew, or by the exercise of a reasonable supervision should have known, that the circuit breakers were defective; that plaintiff's intestate was in the exercise of due care, and did not know, and that it was not his business to know, of the dangerous condition of the span wire by reason of the defective circuit breaker. The following facts were found by the court:

The defendant the Southern New England Telephone Company in operating its telephone lines has frequent occasion to take down and build lines of wires, and frequently the municipal authorities desire the wires of the telephone company and the street-railway company and the electric company to be on the same pole. The plaintiff on November 13, 1895, was appointed administrator of the estate of Timothy Delaney, an experienced lineman of the defendant telephone company, who was killed at Meriden on August 12, 1895, while upon the ground and coiling, a wire of his employer, which rested on a cross arm of a pole jointly used by the defendants. The Meriden Electric Railroad Company is by its charter authorized to carry on the street-railroad business in the city of Meriden, upon Main street and elsewhere, by electricity, by means of the overhead or trolley wire system. The current of electricity used by the telephone company is harmless. The current used in the electric street railway company is between 500 and 550 volts, and, while not usually fatal, is dangerous. The telephone company management at the time of the accident was as follows: A president, who was the general manager of all its departments; a general superintendent, who had general charge of all construction work throughout the state, more especially relating to the plans of such work; two division superintendents, whose duty was to carry out the orders of the general superintendent, and oversee the construction work in their departments. The western department, where the accident occurred, was in charge of one W. S. Crofut. The actual work of construction and changes was done by gangs of workmen, each being assigned to a separate job. At the time of the accident there were several gangs at work under the general superintendence of Crofut. Each gang consisted of a foreman, two or three or more linemen, and two or three or more groundmen. The groundman works mainly on the ground, digging post holes, and other such work. A lineman is frequently termed a "climber." His special duties are in climbing poles, and working at the wires, cross arms, etc., at the tops of the poles. He is frequently required to do ground work. The foreman gives orders to the men during the course of the work. He is equipped with apparatus for climbing poles, and is expected to climb poles, and work at the wires at the tops of the poles, as occasion may require. The division superintendent gives no instructions to the gang as to how the work shall be performed in detail. At the time of the accident, Delaney, the deceased, had been in the employ of the telephone company for many years,—first as a ground-man, but most of the time as a lineman. He was a competent lineman, and familiar with the nature of the business in which he was employed. At the request of the city of Meriden the electric street railway company and the telephone company agreed to use a common pole through certain streets, and the work of shifting the wires from the old poles upon the new line of poles was performed by the telephone company. The trolley wire of the electric street railway company, where the accident happened, was held in position by a span wire, directly crossing the street from pole to pole, and from which the trolley wire was hung. Then from each of the two opposite poles there ran a wire towards the next two opposite poles, and in a diagonal direction, meeting at the center, between two sets of poles on the trolley wire. These wires are called "guy wires." They are connected directly with the trolley wire; the object of these wires being to keep the trolley wire from slipping lengthwise. A short distance from the junction of these guy wires with the trolley wire, the electric street railway company had inserted what is called a "circuit breaker." This is a ball made up of insulated substances, the wire connecting at one and the other side of it; and thus the current of electricity is arrested. It was the usual method of construction, so far as the guy wires are concerned. These circuit breakers ordinarily perform their work successfully. They were put in by the street-railway company in the original construction of the work, and the telephone company was not expected to overhaul the circuit breakers on these guy wires, in the work of shifting the wires of both companies to and upon the new poles. When, for any cause, a circuit breaker becomes sufficiently defective, then the electricity passes through the circuit breaker, upon the wire beyond.

Delaney had, long before the accident in question, received the printed book of the company, containing its rules, among which was the following: "The company will not be liable, any further than above, for doctors' fees and other expenses incurred by reason of accidents; and employes are cautioned against placing themselves in hazardous positions, climbing unsafe poles, handling electric light and power wires." And his attention had been specially called to this rule. He had also been personally shown by Mr. Crofut, when at work upon a job of a similar character in Ansonia, the danger arising from the possible escape of the electric current from street-railway wires upon the wires of the telephone company; and it had been pointed out to him by Mr. Crofut, at that time, how he could detect it A common method then shown to him by Crofut is by applying to the suspected wire one end of a wire, the other end of which is in the ground, to find out by the flashes whether the electricity passes from the suspected wire into the wire reaching to the ground. Such method of inspection was also commonly and well known among linemen. Linemen are employed by the telephone company, among other things, for the purpose of doing work which is dangerous, by reason of the possible contact of the telephone wires with highly-charged wires of the street-railway or other companies. The linemen are to do their own testing in such work. The telephone company has no other men than the linemen to do the testing, as the linemen knew; and there was nothing to prevent Delaney from testing the guy wire, and the linemen on this job were furnished with all the tools, appliances, and wires with which to test wires of the electric street railway company. One Butler was foreman of the gang of men set to work upon this job of transferring both sets of wires to one pole, the upper part of which pole was to be the exclusive property of the telephone company, and the lower part of the street-railway company. He cautioned Delaney as to the dangerous character of the work, especially the dangers which might come from the escaping of the powerful electric current in the trolley wires into some of the wires which they might be called upon to handle. In the previous progress of this Meriden job, there had been called to Delaney's knowledge two instances where the circuit breakers of the electric street railway company on guy wires were defective, and where the electric current passed through the trolley wires upon the telephone wires, and caused considerable damage, in burning out telephones, etc., although there was no damage to persons. In these cases the electric railway company furnished new circuit breakers, which the linemen of the telephone company inserted in place of the defective circuit breakers, as Delaney well knew. The work of insertion, to a lineman, is insignificant, in point of time or skill. Delaney was the next man in the gang, and, in the absence of Butler, had the charge thereof.

The accident occurred by reason of a defective circuit breaker on one of the guy wires, in the following manner: Two linemen in the gang, about three days before the accident, in the course of their work had unfastened this particular guy wire from its old pole, and lashed it upon the new pole. in so doing they felt no electric shock. They were on a wooden pole, which served as a nonconductor. Whether, being on a wooden pole, a person will receive a shock of electricity, or not, depends upon a variety of circumstances. A day or two after the guy wire had been lashed to the new pole, one Flannigan, a groundman, was sent up the new pole to its top, for a certain telephone purpose, and, on his way up, took hold of the guy wire on which was the defective circuit breaker, and felt a distinct shock of electricity. On his way down the pole, after completing his work, he carefully avoided touching that wire. At this time, Delaney, Flannigan, and another ground-man were working together, and Butler, the foreman, was absent. Meeting Delaney at the foot of the pole, Flannigan said to him that he had just had a...