NEW ENGLAND T. & T. CO. v. Central Vt. Pub. Serv. Corp.

• Citation: 391 F. Supp. 420
• Decision Date: 17 March 1975
• Docket Number: Civ. A. No. 6502.
• Court: United States District Courts. 2nd Circuit. District of Vermont
• Parties: NEW ENGLAND TELEPHONE & TELEGRAPH CO. v. CENTRAL VERMONT PUBLIC SERVICE CORP. and Rutland Cable TV, Inc.

391 F. Supp. 420

NEW ENGLAND TELEPHONE & TELEGRAPH CO. v. CENTRAL VERMONT PUBLIC SERVICE CORP. and Rutland Cable TV, Inc.

Civ. A. No. 6502.

United States District Court, D. Vermont.

March 17, 1975.

COPYRIGHT MATERIAL OMITTED

Corsones, & Griffin, Rutland, Vt., for plaintiff.

Miller & Hill, Rutland, Vt., for defendant Osmose Wood Preserving Co.

Douglas C. Pierson, Richard W. Affolter, Burlington, Vt., for defendant New Eng. Tel. & Tel. Co.

Theriault & Joslin, Montpelier, Vt., for defendant, Rutland Cable T. V., Inc.

Dinse, Allen & Erdmann, Burlington, Vt., for defendant, Central Vt. Public Service Corp.

FINDINGS OF FACT, CONCLUSIONS OF LAW and OPINION

OAKES, Circuit Judge, Sitting by Designation.

David Sharp, an employee of Central Vermont Public Service Corp. (CV), was seriously injured on February 16, 1970, while in the process of doing his work as a third class lineman for CV on a pole owned by New England Telephone & Telegraph Co. (Telco) as a result of the pole's falling. Having climbed the pole, hereinafter designated as X-1, he was pulling up a de-engerized primary line being strung from Pole X-1 to a Pole 17, according to testimony of C. William Mulholland who was then working on the ground. Pole X-1 contained near the ground line interior rot which was not visible or readily detectable either by the eye or by a person with David Sharp's experience using his company-prescribed sounding test, i. e., hitting the pole several times with a wrench or hammer at or near the ground line. Pole X-1 was owned by Telco. Although not using the pole, Telco as owner was required under contract to maintain and inspect it. The pole was used by CV and had one Rutland Cable TV (Cable TV) attachment. This action is one for indemnity by Telco for $50,000 paid in connection with a settlement upon a convenant not to sue after David Sharp brought an action against Telco and Osmose Preserving Co., a contractor which performed inspection and treatment of utility poles for both CV and Telco, plus attorneys' fees and expenses of $20,043.57. Also involved is a counterclaim by CV against Telco for its Workmen's Compensation payments made to David Sharp and attorneys' fees in connection with this suit. Detailed findings as to the history of the pole, the events on the date of the accident and the dealings among the parties follow.

FINDINGS OF FACT

1. Pole X-1, the first pole on Roberts Avenue west of North Main Street in Rutland, Vermont, was originally installed by CV in 1955.

2. It was a western red cedar pole which was treated or impregnated with preservative.

3. It came from the stock of poles of CV and was newly installed in the Roberts Avenue location at that time.

4. The location is on an incline sloping down from east to west.

5. The pole with cross arms was installed with approximately 5½ feet of the butt inserted in the ground and the remaining 30 feet in the air, on the plumb, that is, not at an angle.

6. The pole constituted a dead end for CV's electric service on Roberts Avenue, the "feed," i. e., the flow of electricity, on Roberts Avenue being from west to east 7. There was originally no CV line attachment from Pole X-1 to Pole 17, the closest North Main Street pole, one which carries north-south electric, telephone and cable TV service.

8. Pole X-1 carried three CV primary conductors or wires, i. e., two energized primary wires and one neutral wire, as well as three secondary CV conductors, all also running to Pole 1, the next pole westerly on Roberts Avenue and deadending on Pole X-1.

9. Since the tension on Pole X-1 was from the west, a head guy was installed running from the pole more or less in a straight line to the east across North Main Street to an elm tree about 30 inches in diameter; this head guy exerted a contrary tension.

10. No other guys, support wires or braces were used in connection with Pole X-1.

11. Pole X-1 was one of 527 joint use CV-owned poles in a Telco maintenance area transferred in ownership to the telephone company at some time between August 18, 1961, when Exhibit 16, an instrument indicating intent to transfer, was signed, and October 21, 1963, when an exchange of billings (Exhibit 22) in the amount of $15,935.26 was made.

12. As the result of such transfer of ownership, under the agreement between Telco and CV dated April 1, 1929, relative to the joint use of wood poles located in the Rutland telephone exchange area, as amended by their agreement of September 22, 1959, taking into account a July 14, 1959, joint licensing agreement between Telco and CV as licensors and Cable TV as licensee, Telco and CV each assumed certain obligations or duties.

13. Those obligations and duties will be dealt with more specifically in the conclusions of law hereinbelow, but one is the duty of Telco to "maintain Pole X-1 . . . in a safe and serviceable condition, and in accordance with certain specifications . . . and to replace . . . such of said poles as become defective."

14. Telco breached this duty because Pole X-1 was not in a safe and serviceable condition and was at the time of the accident defective.

15. In so doing, there is no evidence in this record, however, that Telco was negligent since the pole was not due for inspection and ground treatment until 1975 under the ordinary and regular procedures used by utility companies in New England.

16. Moreover, although the pole was defective, so long as the head guy and conductors from X-1 were maintained in place, the pole in all probability would not have fallen.

17. There is nothing to show that Telco knew or should have known that the pole was rotten or defective.

18. A duty on the part of CV under the April 1, 1929, agreement (see Article 5) was to give 90 days' notice to Telco of its contemplated change in the character of its circuits on Pole X-1 (by installing a new connection of primary circuits to Pole 17 on North Main Street, thereby changing the flow of current on Roberts Avenue to east-west).

19. This duty was breached by CV, but its breach did not cause Telco any harm and is not relied upon by Telco.

20. As mentioned, by agreement dated July 14, 1959, Telco and CV as licensors permitted Cable TV as licensee, upon application and approval, to use their poles to string its cable and messenger wire.

21. This agreement is contained in Exhibit 13 and was modified on April 27, 1961, and on February 16, 1968, as contained in Exhibit 14.

22. A TV cable was installed in 1962 running from Pole 1, the next pole westerly of Pole X-1 on Roberts Avenue, to Pole X-1 and thence at a 59° angle to the south-southeast to Pole 17 on North Main Street.

23. This cable consisted of a coaxial cable lashed by .045 lashing wire to a 109 support wire (an example contained in defendant Cable TV's Exhibit A) and was pulled as tight as it could be pulled from Pole 1 to Pole X-1 but was given a slack line to Pole 17.

24. The cable was supported on Pole X-1 by a J bracket (which was attached to the pole by drive lags driven by a hammer) and to which the support wire was clamped.

25. The TV cable, even though somewhat slack, exerted some additional tension on the pole the degree of which it is impossible to reconstruct since no reliable evidence shows how slack the cable was strung from X-1 to Pole 17 in 1970.

26. There is, therefore, no showing that Cable TV was in breach of its duties under Article III(a) of the April 27, 1961, agreement or the duty under Article III(b) "to protect against . . . injury or damage to persons . . . including employees . . . of the Licensors."

27. Cable TV did not have notice as required by Article V(a) from CV that CV was going to "make a change in the type of character of any of its attachments."

28. Under Article V(b) "Any and all changes in existing facilities including additional guying necessary by reason of proposed attachments shall be performed by the Licensors . . . ."

29. If Cable TV's attachment had created a dangerous condition, Cable TV did not receive any notice from the licensors (CV or Telco) that the condition should be remedied under Article V(b) or under Article VII(b).

30. The responsibility of Cable TV under Article XI(a) will be discussed below.

31. The accident to David Sharp occurred when he and C. William Mulholland were part of a crew with Anthony E. Fusco as foreman.

32. As foreman, Fusco had the duty to make certain that David Sharp made a proper test for decay before climbing, both under Exhibit 19, the CV Safety Instruction Manual and in light of Sharp's relative inexperience.

33. Pole X-1 could not be properly tested under Rule 11 of the "Special Instructions for Electric Line Department Employees" (Exhibit 19, p. 87) requiring testing for below ground level decay by removal of dirt from around the pole, because the ground was frozen.

34. However, under Rule 12 (id.) where "it is impossible to test pole due to frozen ground . . . the pole must first be braced with pike poles and then temporarily guyed as required in the judgment of the foreman; moreover, "pike poles must be attended if they cannot be grounded securely."

35. By not using pike poles and by not temporarily guying the pole in issue in accordance with its own safety regulations, CV was negligent.

36. While there was some testimony that pike poles, which are 14 feet long and approximately two inches in diameter, with a sharp end, could not be used because of the slope of the ground, the court does not find this to be the fact.

37. The court also finds that even if pike poles could not be used, CV was negligent since temporary guying was possible and not used, despite the inability to make a proper test as required by the safety manual. It is apparent in Exhibit 5 that the boom truck there pictured could have been used, and there is some evidence that it was in the vicinity before the pole was climbed.

38. In any event, the court takes judicial notice that Roberts Avenue is only a few minutes...