Cleveland, Cincinnati, Chicago and St. Louis Railroad Company v. Belange

• Decision Date: 17 March 1922
• Docket Number: 11,104
• Citation: 135 N.E. 367,78 Ind.App. 36
• Parties: CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. BELANGE
• Court: Indiana Appellate Court

135 N.E. 367

78 Ind.App. 36

CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. BELANGE

No. 11,104

Court of Appeals of Indiana

March 17, 1922

From Benton Circuit Court; Burton B. Berry, Judge.

Action by John Belange against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff the defendant appeals.

Affirmed.

Frank L. Littleton, Charles M. Snyder and Forrest Chenoweth, for appellant.

Elmore Barce, Fraser & Isham, William S. Isham and Joseph Edward Barce, for appellee.

OPINION

MCMAHAN, J.

This is an action by appellee under the federal Employers' Liability Act to recover damages for personal injuries alleged to have been caused by the negligence of appellant while appellee was in its service. The complaint, omitting the formal parts thereof, in substance charges that on October 5, 1917, appellee, then about twenty years of age was in the employ of appellant as a lineman, to build telegraph lines along its right of way, to set and reset poles, to repair and tighten telegraph wires, and to keep such wires free from contact with each other and from branches and tops of trees; that on said day while appellee was so employed, appellant directed him to climb and go into and among the branches of a large tree standing near its right of way and remove certain limbs so that they would not interfere with the telegraph wires; that appellee did not know and appreciate the danger incident to and growing out of the employment necessarily involved in going up into said tree to remove said limbs, and did not know what means were reasonably necessary and proper to be employed in the safe performance of his duty; that the only means furnished him by appellant in going up said tree was what is commonly called "lineman's spurs" or "hooks," the same being a strip of iron extending along and buckled to the legs of the person climbing telegraph poles with a loop or stirrup for the foot to which is affixed a spur or spike intended by the pressure of the leg against the pole to go into the wood and hold the weight while the other leg is extended up and set into the pole; that when said spurs are long and sharp they are reasonably sufficient to enable a person engaged in that service to climb a telegraph pole, but were not reasonably sufficient to enable a person to climb a large tree; that appellee had no knowledge of the danger in attempting to go up a large tree, did not appreciate the danger thereof, and was not warned of such danger by appellant, although it knew the danger was great; that appellee in obedience to the order of appellant and under the direction of its foreman started to climb a tree more than three feet in diameter, with no other aid than a pair of said spurs, for the purpose of cutting out branches to avoid contact with telegraph wires; that appellee climbed said tree, using all the care which he was capable of exercising, and using said spurs to the full capacity of their use under the assurance of the foreman that the spurs would hold, and when he was about forty feet from the ground, the spurs broke out and tore off the bark of the tree, either because they were not long enough to go through the outer weather-beaten bark of the tree, or because they were not sharp enough to penetrate into the live and sound bark or wood of the tree; that by reason of the spurs giving way appellee fell to the ground and was severely injured without any fault on his part and wholly by reason of the negligence of appellant.

The specific charges of negligence on the part of appellant are: (1) That it negligently failed to furnish appellee with a ladder, or other reasonably sufficient means to go up said tree; (2) that it was negligent in ordering appellee to climb said tree in the manner directed and with the means provided; (3) that it was negligent in having in its employ and over appellee the foreman it then had in its employ, for the reason that said foreman was habitually negligent and disregardful of the duty of appellant toward appellee and other employes; (4) that appellant was negligent in that it had not prescribed and fixed any rule providing that ladders or other reasonably sufficient means should be provided for the purpose of enabling employes to go up into the top and among the branches of large trees; (5) that appellant was negligent in furnishing appellee with spurs too short and too dull to go through the outer bark and into the live bark and wood of a tree; (6) that it was negligent in not providing appellee with spurs long enough and sharp enough to go through the outer bark and into the live bark of a tree; (7) that appellant knew and should have known that said spurs were too short and too dull to afford reasonable opportunity for appellee to perform the service required of him, and that it was negligent in ordering him to climb said tree, knowing that it was unsafe and involved extra hazard to appellee in requiring him to perform such services in the manner and form required and with the means then at hand.

The cause being at issue, it was tried by a jury and resulted in a substantial verdict for appellee. The jury, in connection with the general verdict, answered certain interrogatories. Appellant's motion for judgment non obstante and its motion for a new trial were overruled. The errors assigned and relied upon for reversal relate to the overruling of these motions. The specifications in the motion for a new trial are that the verdict is not sustained by sufficient evidence, is contrary to law, the refusal to give, and the giving of certain instructions and admitting certain evidence.

The first contention of appellant is that the court erred in refusing to instruct the jury to return a verdict for appellant. This contention is based upon two propositions: First, that the evidence fails to show any negligence on the part of appellant; Second, that appellee's injuries were due to the risk of the service. It is not necessary for us to enter into a discussion of the elements necessary to constitute actionable negligence. These elements are clearly and correctly stated in Indiana, etc., Coal Co. v. Neal (1906), 166 Ind. 458, 77 N.E. 850. Appellant, in support of the contention that there was a failure to show any negligence on its part, refers to the allegations of the complaint that the spurs used were too short and too dull, and that there was a negligent failure on the part of appellant to furnish longer and sharper spurs, and insists that no evidence was offered upon either of these subjects; that the only evidence is that appellee, while attempting to climb the tree, fell because the spurs broke out; and that there is no evidence showing whether the breaking out of the spurs was due to the fact that the spurs were too short, too dull, or improperly applied.

One of the acts of negligence charged in the complaint was the defective condition of the spurs. The jury, by its general verdict and also in answer to an interrogatory, found that the spurs were too short. If the evidence is sufficient to sustain this finding, the binding instruction was properly refused. It is true, as contended by appellant, that the spurs furnished appellee were standard spurs such as are generally used throughout the country by telegraph companies; that the pair used by him was selected by him from a number furnished by appellant, so as to get the proper size for his use; that he kept the spurs so selected by him, and on the day of the accident took them from the tool car where he kept them, and fastened them on his feet preparatory to doing the work which he was employed to do. When appellee started to climb the tree from which he fell, he was asked by the foreman then in charge if he could climb it, and he replied, "If I can't climb it, I can coon it," and after he was part way up the tree, the foreman told him if he couldn't climb it to come down.

In addition to the facts above stated, there is evidence tending to prove that the tree which appellee was called upon to climb was a cottonwood, three feet or more in diameter, with bark that was rough and which had indentations one or two inches deep, and about a half inch apart. This tree was near appellant's right of way and about two miles west of Charleston, Illinois. The only appliances furnished for that purpose was a pair of climbers. In climbing the tree appellee wore gloves to protect his hands, and he was not able to get his fingers in the instertices in the bark. Appellee undertook to climb the tree, and when he had gotten from twenty to twenty-five feet from the ground his spurs broke out and he slipped down to within ten feet from the ground, when he caught himself. The foreman looked up at him, saying, "Well, go on up; that is all right." Following this, appellee again started to go up the tree, and when he got about thirty-eight feet from the ground, the spurs again broke out, and he fell to the ground and was seriously injured. Appellee prior to this time had never climbed a tree anywhere near as large as this one. There were no rules respecting the means to be employed in, or as to the manner of doing this kind of work. The foreman and employes were left to their own discretion in this regard. There is no evidence that any of the employes had ever climbed trees as large as the one which appellee attempted to climb, or that the foreman had ever seen any one attempt to climb such a sized tree, either with or without means other than a pair of spurs. The spikes on the spurs used by appellee were an inch and a half or two inches long. Some time after appellee was injured appellant had an experienced lineman from Anderson climb this tree in order to measure the circumference at various points. This man used...