Black v. Rocky Mountain Bell Telephone Co.

• Citation: 73 P. 514,26 Utah 451
• Decision Date: 24 August 1903
• Docket Number: 1465
• Court: Supreme Court of Utah
• Parties: PERCY A. BLACK, Respondent, v. ROCKY MOUNTAIN BELL TELEPHONE COMPANY, a Corporation, Appellant

73 P. 514

26 Utah 451

PERCY A. BLACK, Respondent, v. ROCKY MOUNTAIN BELL TELEPHONE COMPANY, a Corporation, Appellant

No. 1465

Supreme Court of Utah

August 24, 1903

Appeal from the Fourth District Court, Utah County.--Hon. Thomas Marioneaux, Judge.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

J. W N. Whitecotton, Esq., and Messrs. Rawlins, Thurman, Hurd &amp Wedgwood for appellant.

Messrs Powers, Straup & Lippman and W. N. Dusenberry, Esq., for respondent.

BASKIN, C. J. BARTCH and McCARTY, JJ., concur.

OPINION

BASKIN, C. J.

--The plaintiff seeks to recover for personal injuries which he alleges were caused by the negligence of the defendant. The defendant in its answer denied the alleged negligence, and pleaded the contributory negligence and assumed risk of the plaintiff, and that the said accident to and injuries suffered by the plaintiff, if any, were caused either by his own negligence or that of a fellow-servant. From the judgment rendered in favor of plaintiff, the defendant has appealed.

1. At the conclusion of the plaintiff's evidence in chief the defendant moved for a nonsuit on the grounds, in substance, that: "(1) It does not appear from the evidence that defendant was guilty of negligence which was the proximate cause of the injuries to plaintiff. (2) It does not appear that defendant failed in any duty owing to plaintiff. (3) It does appear that plaintiff was guilty of contributory negligence. (4) It does appear that the risk was open and obvious to plaintiff and was assumed by him. (5) It does appear that the accident was one of the risks incident to the employment. (6) If plaintiff was injured by reason of negligence other than his own, it was that of a fellow-servant." It does not appear as a matter of law, from the evidence in chief of the plaintiff, that either of the grounds of the motion is sustained; on the contrary, it appears from the evidence that it is amply sufficient to sustain a verdict for the plaintiff. The motion for a nonsuit was therefore properly denied.

2. While the plaintiff was on a telegraph pole, engaged in stretching a wire for the purpose of attaching it to the pole, it came in contact with a charged wire, and by the shock he was thrown to the ground and injured. Elbert E. Darling, the local manager of the defendant in charge of the work in which the plaintiff was engaged, testified on behalf of the defendant, in substance, that he told the plaintiff that he did not want him to touch that wire or work there until the power had been turned off of the electric wires running underneath; that each lineman performing services that required him to climb poles above ground was required to provide himself with a belt and safety strap before going to work; that the purpose of the safety strap was to prevent persons engaged at work upon the poles from falling to the ground, and when attached to a pole or a cross-arm it would accomplish that purpose; that he, the witness, did not think it was possible for the plaintiff to have fallen to the ground had he had the safety strap fastened around the pole or lower cross-arms. The evident purpose and tendency of this testimony was to show that the plaintiff himself was to blame for the accident. On cross-examination this witness, after having stated that he had talked with the plaintiff about the accident, and how it happened, was asked, "Did you say, in the presence of Mrs. Jakeman and Mr. Black, that he was not to blame for the accident in any way?" Defendant objected to this question as irrelevant, immaterial, and incompetent, and not cross-examination. The objection was overruled, and an exception taken. The witness continued: "I don't remember of making such a statement. I did not say that, in substance or fact, that I remember of. I don't say that it did not take place, but I do not remember it." The objection was properly overruled.

3. On the re-examination of this witness by defendant, he further testified that "the work that Black was directed to do by Bellamy on the 5th was merely the stringing of these two wires. He was directed by me not to do any work on these two poles pertaining to the wires crossing the electric light wires until the current had been turned off. I do not think that Black is entitled to recover in this case because he failed to perform his duty of securing himself against injury from falling by not making use of the appliance that he knew he was supposed to use. If he neglected to use it, he did so at his own peril, at his own chance. I think the plaintiff disobeyed what was intended to be a safeguard on the line by doing any work on the pole while the current was on. If he had made sure that the current was off before he went up that pole to do any work whatever, as the two wires in question run from this pole here to the pole which he went up, certainly there could not have been any possible way for him to have received this shock; and, if he had in any manner lost his hold and used the safety strap to prevent him from falling, he certainly would not have been hurt." The plaintiff, in rebuttal, called Mrs. Jakeman to the witness stand, and after she had testified that she was present shortly after the accident, when a conversation was had with Darling in the presence of the plaintiff, the following occurred: "You may state whether or not, in the course of that conversation, he stated that he did not blame Mr. Black, or that in substance? (Objected to as irrelevant, incompetent, and not rebuttal.) The Court: It is received only on the question of credibility as bearing upon Mr. Darling's statement that he told him not to work there until the electricity was turned off. The objection is overruled." The witness answered that Darling made such a statement. The plaintiff was also permitted, over a like objection by the...