Cleveland, C., C. & St. L. Ry. Co. v. Scott

• Decision Date: 08 October 1902
• Citation: 29 Ind.App. 519,64 N.E. 896
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. et al. v. SCOTT.

29 Ind.App. 519

64 N.E. 896

CLEVELAND, C., C. & ST. L. RY. CO. et al.

v.SCOTT.

Appellate Court of Indiana, Division No. 1.

Oct. 8, 1902.

Appeal from circuit court, Clinton county; James V. Kent, Judge.

Action by William M. Scott against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and another. Judgment for plaintiff, and defendants appeal Reversed.

John T. Dye, L. J. Hackney, and Chambers, Pickens & Moores, for appellants. Crane & Anderson and M. W. Bruner, for appellee.

BLACK, J.

The appellee's complaint against the appellants, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the Western Union Telegraph Company, filed in the Montgomery circuit court, contained two paragraphs. In the first, after introductory matter, it was shown, in substance, that a telegraph line was maintained, operated, and controlled along the line of the railroad of the railway company in Montgomery county in common and for the benefit of both of the appellants, and was used by the railway company in running its trains, and was necessary therefor, and the movement and running of the trains were controlled by means of the telegraph lines; that the telegraph line along the railroad in that county, during the year 1897, was out of repair, and in need of repair; that many of the poles in the line were old, rotten, and defective, and new poles were required to be placed instead of them; that some of the poles had been put in a year or two before, and were good and strong, and fit to be left standing; that in October, 1897, the appellants were engaged in repairing the telegraph line by removing the old and defective poles and replacing them with new ones; that in the prosecution of this work the appellants employed the appellee, who is a lineman, to assist in this work; that other persons were employed in the work, and they and the appellee composed a gang of some 16 men; that over these men the appellants placed one Lewis W. Roseman as foreman, under whose orders and directions the gang worked, and to whose orders and directions the appellee and said men were bound to conform and did conform in the prosecution of the work; that said foreman had full charge of the work and of the men engaged therein; that new telegraph poles were scattered and distributed along the line of said road, and the appellee was directed by said foreman to go on ahead of the remainder of said men, and to cut the gains in said poles while lying distributed along the road and on the ground, which gains are necessary to hold the cross-arms near the tops of the poles, and appellee did perform this work as directed by the foreman; that while the appellee was engaged in this work, the foreman, who was in charge of the remainder of the gang, was engaged in removing the defective poles and in replacing them with new ones ready to put on the wires; that it was the duty and business of the foreman to test all of the old poles, and to ascertain by tests and examination whether they were sound enough and fit to remain and hold the wires, and, if they were not, he was to have them removed, and good ones put in their places; that after this had been done for a mile or so along the road, it was then the duty of the appellee, acting under the orders of the foreman, to go back, and fasten the wires onto the poles that had been tested, or that had replaced the defective poles; that the wires had to be tightly stretched before they were made fast to the cross-arms, and, in order to stretch them, and fasten them when stretched, one of the poles was selected by the foreman from which to stretch the wires; that, as there was a great strain on this pole, it had to be stayed so as to stand the strain; that, in order to stay it, a heavy wire was placed over the top of it, and was extended to the foot of the pole standing west of it, and was made fast to this pole, and this wire was stretched tightly, so that the pole which it was intended to stay would not give, and would stand the stretching of the wires from the east; that the appellee did go back, under the orders of the foreman, to assist in stretching the wires and in staying the pole from which the stretching was to be done; that the telegraph wires were to be stretched from said pole and then fastened to the cross-arm at its top, to form the telegraph system along the railway; that the foreman had selected an old pole from which to stretch the wires, and had not put a new one in its place, as he might and ought to have done; that he directed the appellee to climb this pole, and to adjust over the top of it the wire that should stay it; that the appellee did climb this pole as directed, and did adjust the staying wire over the top of it; that while he was at the top of the pole, with his left leg over the cross-arm at that point, which position was the proper, usual, and customary one, the foreman negligently ordered some men of the gang to pull on the wire, so as to stay it, which was the usual and proper mode to pursue, the appellee remaining at the top, as was the custom; that as soon as they pulled on the wire the pole broke off at the ground, and the appellee fell, with the pole, to the ground; that the pole was 25 feet high, and the appellee was right at the top of it before and at the time of its so falling; that by the fall he was greatly bruised and hurt, and the cross-bar and pole, falling upon his left leg, broke and bruised it at the knee joint; that such injury is a permanent one, and on account of it the appellee is a cripple for life; that the pole was about 12 inches in diameter at the ground, and tapered gradually to the top, where it was about 8 inches in diameter; that it was a wooden pole, commonly known as “white cedar”; that when appellee climbed it it had the appearance of being sound and strong, but it was in reality rotten under the surface of the ground, and entirely unsafe for the use to which it was put; that appellee did not know that it was unsound and rotten, but relied upon the examination that he supposed the foreman had given it, and upon its apparent soundness; that it was the duty of the foreman to examine and test said pole, as was understood at the time by the appellee, and the foreman was intrusted by the appellants with said duty; that he did not perform said duty, but negligently allowed said defective pole to remain there, and neglected and failed to test and inspect it, that he might thereby ascertain whether it was sufficiently strong to remain and to stand the strain of the wires and of the guy wire and the weight of the lineman; and, without having made any effort to discover the condition of the pole, and without having ascertained its true condition, he ordered the appellee to ascend it for the purposes aforesaid, and the appellee obeyed this order and ascended the pole without any knowledge or notice that the foreman had failed to test and inspect the pole for the purposes aforesaid, and without any notice or knowledge that the pole was rotten and unsafe, but believing it to be safe. It was further alleged that, if the foreman had properly examined the pole, he could have discovered its defective condition; that the pole looked on the outside like it was sound; that the appellee had no opportunity to examine it, or to find out its defective and dangerous condition; and when he climbed it he did so under the order and direction of the foreman, believing that it was safe and sound. After other averments, which need not be set out for the purposes of our decision, it was alleged that the appellee's injury was caused by the fault and negligence of the appellants “as aforesaid,” and without any fault or negligence whatever on the part of the appellee, etc. The second paragraph was substantially the same as the first, except that, instead of alleging that the foreman did not perform his duty to examine and test the pole, but negligently allowed it to remain, and neglected and failed to test and inspect it, and without having made any effort to discover its condition, he ordered the appellee to ascend the pole, etc., as in the first paragraph, it was in the second alleged that the foreman, by the use of ordinary care and attention, and by the use of the tools and the means then at hand and under his control and at his command, could have readily found out whether the pole was rotten, decayed, and defective, and not strong enough to stand and remain standing, but he so negligently and carelessly performed and discharged his duty as aforesaid that he failed to ascertain and find out that it was rotten, decayed, unsound, and not fit to remain standing as aforesaid; that without making use of said tools and means at his command, or making any other suitable examination or test, the foreman negligently ordered the appellee to ascend the pole for the...