Burns v. Del. & A. Tel. & Tel. Co.

• Decision Date: 14 November 1904
• Citation: 59 A. 220,70 N.J.L. 745
• Parties: BURNS v. DELAWARE & A. TELEGRAPH & TELEPHONE CO. DONAHUE v. SAME.
• Court: New Jersey Supreme Court

59 A. 220

70 N.J.L. 745

BURNS

v. DELAWARE & A. TELEGRAPH & TELEPHONE CO.^*

DONAHUE

v. SAME.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Action by William J. A. Burns and Owen Donahue against the Delaware & Atlantic Telegraph & Telephone Company. Judgments for plaintiffs, and defendant brings error. Affirmed.

Norman Grey, for plaintiff in error.

John W. Westcott and R. W. E. Donges, for defendants in error.

PITNEY, J. These were two actions of tort, brought to recover damages for personal injuries sustained by the plaintiffs below while in the employ of the defendant company. They were tried together, and resulted in a verdict and judgment in favor of each plaintiff. Errors at the trial are asserted as ground for reversal.

Plaintiffs were laboring men, and, with others, were engaged in attending reels from which copper wires were being unwound, while at the same time another gang of men were stringing them upon poles of the defendant company. There were ten reels, each of which carried a single coil of wire. The outer ends of the wires were attached by snaphooks to a device known as a "running board," to which in turn was attached a rope by means of which a team of horses drew the ten wires simultaneously from the reels. These wires were bare, and, of course, were normally "dead" wires. The defendant's line of poles carried two sets of cross-arms, each arm being designed to carry ten wires. The ten wires that were being unreeled were being placed upon the upper set of cross-arms. From the reels the wires passed to the cross-arm upon a pole near by, and thence along the line of poles. As each successive pole was reached and passed by the team, the wires were detached from the running board, lifted over the cross-arm by the polemen or "climbers," and then once more attached to the running board. Thus the strain of the wires was intermittent. The lower cross-arms carried eight telephone wires, previously strung, and running parallel to the wires that were being strung at the time in question. Between 350 and 400 feet from the place where the plaintiffs were working the wires that were in process of being unreeled passed above a trolley feed wire, the elevation of which was below the lower cross-arms of the telephone line. It was in evidence that between the place where the plaintiffs worked and the trolley line, the line of wires passed through trees or woods that obscured the plaintiffs' view of all beyond. As to the cause of the accident, the evidence tended to show that one or more of the new wires broke or sagged, and thus came in contact with the trolley wire, deriving from it a strong current of electricity that was conveyed along the new wires to the plaintiffs, who were shocked and seriously burned thereby. The team was about 3,500 feet from the reels at the time. The evidence tended to show that the current proceeded from the trolley wire, and to exclude the theory that it could have proceeded from any other source. The evidence on the part of the plaintiffs tended to show that a wire or wires were permitted in the ordinary progress of the work to sag and come in contact with the trolley wire. Upon the part of the defendant the insistment was that one of the wires broke while being drawn from the reel; but as it was at least disputable whether the breaking, if it occurred, was occasioned by any negligence of the plaintiffs or their fellow workmen, it makes little difference for present purposes whether the wire broke or not. If it broke without negligence of the workmen, the jury had a right to treat the breaking as an ordinary incident of the method or system adopted by the defendant in the prosecution of its work.

The negligence attributed by the plaintiffs to the defendant was the failure to take precautions to prevent the powerful current of the trolley wire from being communicated to the persons of the employés. The precautions suggested by the evidence were a sling or basket made of rope, to be suspended over the trolley wire in order to prevent the telephone wires from dropping at that point, and, as a further precaution, the use of rubber gloves for the hands of the workmen, or a board platform or wagon upon which they might stand. It appeared that the reels were placed upon the ground, that the earth at this point was damp and muddy, and that this rendered the men more liable to be injured by the escape of electric current from the wire through their bodies to the ground. The rope sling or basket, of course, would tend to prevent the wires upon which they were working from becoming charged with electricity. The gloves or platform would tend to prevent the men from receiving a serious shock if the wires should become charged.

There was a motion for nonsuit, and also a motion to direct a verdict in favor of the defendant, both of which were refused. The grounds upon which these motions were based, so far as necessary to be now mentioned, are (1) absence of evidence to show negligence on the part of the defendant; (2) or to show knowledge on the part of the defendant that the telephone wires were crossing a live wire; (3) or to show that the absence of boards and gloves was the proximate cause of the accident; (4) or to show that it was the usual custom in the business for employing companies to supply such devices to men working under the circumstances that surrounded the plaintiffs. A similar question was raised by defendant's fourth request to charge, which was refused. The proposition thus rejected was that "it was no portion of any duty of defendant to supply gloves and boards or a platform under the circumstances in this case."

It is one of the duties of an employer to exercise reasonable care that the place in which he sets his servant to work, and the system or method adopted by the employer for the doing of the work, shall be reasonably safe for the servant, and free from latent dangers known to the master or discernible by an ordinarily prudent master in the circumstances. Western Union Tel. Co. v. McMullen, 58 N. J. Law, 155, 33 Atl. 384, 32 L. R. A. 351. That the duty of the master to exercise care with respect to the place of working extends to the system or method of arranging the work is established in this state. Belleville Stone Co. v. Mooney, 60 N. J. Law, 323, 38 Atl. 835, 39 L. R. A. 834; Id., 61 N. J. Law, 253, 39 Atl. 764, 39 L. R. A. 834. In the present case the jury might reasonably find from the evidence that the danger of contact between the wires at which the plaintiffs were working and the trolley wire was a latent danger, unknown to the plaintiffs. They severally denied that they knew there was any danger connected with the work, and it was shown they were inexperienced in the work of line construction. They were not linemen, and had no knowledge or experience of electricity. Even had they known their wires were to be carried across a trolley wire, it was not necessarily obvious to them that there was a probability of contact with the latter wire. Again, an obvious probability of such contact would not necessarily import notice to the plaintiffs of an obvious danger to them —First, because, even on defendant's own evidence, the jury had a right to find that not all trolley wires carry current sufficiently powerful to injure a human being; and, secondly, because there is much evidence in the case indicating that even a powerful current might be harmless to men handling wires, except where their feet were placed upon damp ground; and there is nothing to show that the plaintiffs knew that the dampness of the ground at all imperiled their safety. The jury had a right to find that the entire situation, as well as the danger that was latent in the situation, was known to defendant's agents, who acted for it in laying out the work, and who represented it in respect of the duty to exercise care for the safety of the plaintiffs, or that it would have been known to an ordinarily prudent employer under the like circumstances. There was likewise abundant evidence from which the jury might reasonably infer that ordinarily prudent employers, under such circumstances, employed either a guard wire or a rope sling or basket to prevent the wires upon which employés were working from dropping upon a live wire carrying a current of high power, and that as an additional precaution against danger to the men in case of such contact it was customary to use rubber gloves or a board platform, or, as a substitute for the latter, to place the men upon a wagon while employed in such work. It is urged here that the evidence as to the failure to supply rubber gloves and a guard wire was irrelevant and immaterial to the issue as framed, since the plaintiffs' declarations counted solely upon the absence of boards or a platform for the plaintiffs to stand upon. The criticism ignores some of the averments of the declarations, but, without spending time upon the point, it is sufficient to...