Chisholm v. New England Tel. & Tel. Co.

• Decision Date: 26 February 1904
• Citation: 185 Mass. 82,69 N.E. 1042
• Parties: CHISHOLM v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 82

69 N.E. 1042

CHISHOLM v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1904

COUNSEL

Thos. J. Gargan and Pratt & Devine, for plaintiff.

John & Jas. A. Lowell, for defendant.

OPINION

MORTON J.

It was the duty of the defendant to exercise reasonable care and diligence in seeing that the structures and appliances which it provided were free from defects, so that the plaintiff's testator and others in its employ, being themselves in the exercise of due care, could safely perform the work which they were employed to do. The defendant could not avoid liability for injuries caused by its negligence in this regard by delegating this duty to others, or by imposing it, within the sphere of their respective duties, upon those in its employ, unless the circumstances were such as to constitute an assumption of the risk or want of due care on the part of the person or persons so injured. There was testimony tending to show that the fall of the plaintiff's testator, and the injuries which he sustained, were caused by the pulling out of a pin which he had taken hold of in the course of his ascent, and which came out while he had hold of it with one hand, and was looking over the wires to see which one should be removed. There was also testimony tending to show that the hole into which the pin had been driven was bored so that it slanted downwards instead of being on a level or slanting upwards, and that the pin was only driven in 2 1/2 inches, instead of 4, as there was testimony tending to show that it ought to have been. This testimony would have warranted a finding that there was a defect in its original construction, for which the defendant was responsible, and that the injuries received by the plaintiff's testator were due to it.

It cannot be said, as matter of law, that the plaintiff's testator was not in the exercise of due care, or that he assumed the risk. Those were both questions for the jury, as the case was left by the evidence that was introduced. The testator was engaged in the performance of his duty, and it would have been for the jury to say whether, under the circumstances, he ought to have examined the pin, and was negligent in not doing so, or in trusting his weight to it without such examination. The linemen were required by the rules to test the poles and steps if they thought there was danger, and, if they found any...