Anderson v. Inland Tel. & Tel. Co.

• Decision Date: 01 July 1898
• Citation: 19 Wash. 575,53 P. 657
• Court: Washington Supreme Court
• Parties: ANDERSON v. INLAND TELEPHONE & TELEGRAPH CO.

53 P. 657

19 Wash. 575

ANDERSON v. INLAND TELEPHONE & TELEGRAPH CO.

Supreme Court of Washington

July 1, 1898

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Peter Anderson against the Inland Telephone & Telegraph Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Blake & Post, for appellant.

Wirt W Saunders and W. J. Thayer, for respondent.

DUNBAR J.

The respondent, a servant of the Inland Telephone & Telegraph Company, brought an action against the said telephone company and the Spokane Street-Railway Company. The complaint alleges that, at the time the accident occurred, the plaintiff was a lineman in the employ of the Inland Telephone & Telegraph Company; that the two defendants used in common a pole located on the corner of Olive and Hamilton streets, in the city of Spokane; that the telephone company used said pole for holding up telephone wires, and the street-railway company had fastened to said pole a span wire or guy wire which ran to the pole from the trolley wire used by the street-railway company; that the plaintiff ascended said pole for the purpose of stringing a wire on the pole, and, while on the pole, came in contact with the span wire belonging to the street-railway company, touched the same, received an electric shock, and fell to the ground, breaking his leg as a result of said fall; that the wire which plaintiff touched which belonged to the street-railway company, was not designed or intended to carry electricity, but was used as a support for the trolley wire used by said street-railway company, but, through the careless and negligent acts of the street-railway company, said wire was at the time charged with a strong current of electricity, and was negligently left by the street-railway company uninsulated, and in a dangerous and unsafe condition; that both of the defendants knew, and by the exercise of reasonable care might have known, and that plaintiff did not know, and by the exercise of reasonable care could not have known, the fact that said wire was charged with electricity. Upon the trial of the cause, by stipulation, the street railway was dismissed from the action, and a judgment was obtained against the appellant, the Inland Telephone & Telegraph Company. From such judgment this appeal is taken.

The contention of the respondent is that it is the duty of the master to furnish the employé with a safe place to work, and with safe and suitable machinery or appliances, and that this duty is a continuing one, which is imposed upon the master during employment. There is no doubt that this proposition of law is a correct one, and it may be stated as a corollary to the proposition enunciated above, that the law charges the master with knowledge which he ought to have had; and it is settled law that he ought to know that which by the exercise of reasonable care he would have discovered. Also, it may be accepted as universally conceded law that the responsibility of the master cannot be transferred to another, and that when a duty is imposed upon him, and another is employed by him to perform that duty, the negligence of the agent will be imputed to the master. But this case must be considered with reference to another universally accepted proposition, viz. that, when a servant enters into an employment which is necessarily hazardous, he will be presumed to have assumed all the ordinary risks incident to such service; and the fact that the service is necessarily a dangerous one does not increase the master's liability if the injury resulted from the natural and ordinary incidents of the undertaking, presuming, of course, that the servant is a person of mature years and common understanding. The trouble in this case is not so much to determine what the law is in regard to the duties of master and servant as it is to apply the group of circumstances in the case to the law. It is the insistence of the appellant that, under the circumstances of this case, there was no duty resting upon the master to inspect the insulator which was the cause of the current flowing from the trolley wire to the span wire. It may be stated here that the insulator, which was a porcelain one, broke, by reason of which the guy wire came in contact with the charged wire of the railway company, and this guy wire, being attached to the post which the respondent was climbing, was the wire with which he came in contact. We have examined with particular care both the record in this case, and the cases cited by respondent and appellant, and all other authority bearing upon the case which we have been able to find, but have not been able to find a case exactly in point, it being conceded by the authorities generally that the proper application of well-known principles governing the responsibilities of masters depends largely upon the circumstances of each case. But, from such an investigation as we have been able to make, we are forced to the conclusion that no absolute duty rested upon the master in this case to prevent the charging of this guy wire, or, in other words, to preserve inviolable the insulators, so far as the safety of the respondent is concerned. The respondent here was a lineman, and had been in the employ of the company for something over two years, working first as a groundman, and for two years or more had been working as a lineman.

It is contended by the respondent that the question of whether or not the respondent was an inspector is a question of fact upon which the testimony is conflicting, and that, therefore, the verdict of the jury upon that proposition is binding upon the court. We think, in any event, the judgment would have to be reversed by reason of the instructions given by the court; but, with the view that we take of the master's liability under the undisputed testimony, it will not be necessary to notice these errors. It is true that the respondent testified that he was not an inspector, and that he also testified, notwithstanding the fact that he had alleged in his complaint that he was a lineman, that he was not a lineman; but the testimony was evidently with reference to a definition or a statement of the lineman's duty as given by Mr. Hopkins, the superintendent of the telephone company, and the later testimony, not only of the appellant, but of the respondent and his witnesses, shows conclusively, it seems to us, that, while not nominally an inspector, the duties of a lineman embraced the duties of an inspector. Corporations of this kind act through employés. Necessarily, they cannot act in any other way. An inspection of their lines and posts and insulators must be made by the employés. In this case it is an admitted fact that there was no regular inspector and no inspectors other than the linemen. It is true that some of the railroad cases cited by the respondent decided that it was the duty of the company under certain circumstances to have inspectors, but we think none of those cases are in point here. In this case the respondent and the other linemen testified that they knew that the line or wire which occupied the insulator jointly with the wire with which respondent came in contact was charged with electricity. The respondent testified that he knew the power of electricity, and the danger that would be incurred by coming in contact with a live wire; that he knew that, if the insulator broke, the result would be that the wire which he touched would be charged; and he knew also that porcelain insulators frequently did break. It seems to us that this brings him within the rule which we have announced above,-that when he accepted the employment, that was necessarily hazardous, he assumed this risk, which, under all the testimony, was an ordinary risk, and that he did not exercise the discretion which he ought to have exercised in testing this wire. The testimony shows that, shortly after the accident, one of the appellant's witnesses, Mr. Dart, observed the insulator, and separated it from the wires, and it was made an exhibit in court. He also testified that the insulator when it was exhibited was in the same condition that it was immediately after the accident, when he first discovered it. About one-half of the insulator was gone, and there was some contention developed in the trial as to whether the broken part of the insulator was towards the post which respondent climbed; and it was conceded this might have been detected by a lineman who was accustomed to looking at such things, if the broken part of the insulator had been next to the post. We think, and such was the opinion of the lower court who heard the testimony, that it is demonstrated that it was a physical impossibility for the broken part of this insulator to have been in the opposite direction from the post without making a complete insulation. This, therefore, must be considered an established fact in the case. The respondent says that he glanced at the insulator when he went to ascend the post, but did not give it any particular attention, and did not make any test. The testimony of the other linemen was-and it is not controverted-that linemen carried apparatus by which they could test insulators, and that they understood that they had to look out for themselves so far as danger was concerned. It appears from the testimony that the respondent must have known that no other inspector was kept by the company, and, even if there had been, it is impracticable for an inspector to make tests that would protect workmen at all times. An inspector cannot be maintained at every insulator. An insulator might be tested and found sound at one hour of the day, and the next hour it might be broken, so that it would not insulate the wires, and the...