Co-Operant Tel. Co. v. St. Clair

• Decision Date: 16 March 1909
• Docket Number: 61.
• Citation: 168 F. 645
• Parties: CO-OPERANT TELEPHONE CO. v. ST. CLAIR.
• Court: U.S. Court of Appeals — Second Circuit

168 F. 645

CO-OPERANT TELEPHONE CO. v. ST. CLAIR.

No. 61.

United States Court of Appeals, Second Circuit.

March 16, 1909

O. M Barber (J. Sanford Potter, of counsel), for plaintiff in error.

T. W Moloney, for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

LACOMBE Circuit Judge.

The telephone wires upon which deceased was working carried a current not sufficiently strong to injure him. The wires with which he came in contact belonged to a light and power company and were strung along a street in Whitehall, N.Y above a line of telephone wires. About two years before the accident, which happened July 27, 1905, the wires of the light company sagged at the locality in question and thus approached the lines of the telephone company. The latter complained to the light company; but, its complaints not being attended to, defendant erected a framework on its pole extending above its own wires, and on the top of this frame it fastened the light wires. The pole thereafter carried two cross-arms, on which were strung 16 or 17 telephone wires. These cross-arms were about 20 inches apart, and above, at a distance variously estimated by the witnesses at from 21 inches to 2 1/2 feet, was the top of the framework, carrying 5 light wires, of which, on the day of the accident, two were carrying current. Deceased was directed to climb the pole and fasten 2 of the telephone wires, recently strung, to pins on the lower cross-arm near its outer end. He climbed the pole, using spurs, reached and placed his feet on the lower cross-arm, straddled over the wires on the upper cross-arm, and bent down and over to reach the wires he was to fasten. In some way, not clearly indicated, while engaged in that work he straightened up so as to come into contact with the two light wires and received the current which killed him.

In the winter before the accident-- January or February-- in order to thaw out a frozen water pipe, the insulation was removed from these two wires for a distance of 2 or 3 inches, and copper wires were fastened to them and were led into an adjoining building. When the pipe was thawed out these copper wires were clipped off, but nothing was done towards restoring the insulation. The places where it was removed were distant from the pole about as far as the man who removed the insulation could conveniently reach. Subsequently, the wires being tightened, they were drawn somewhat nearer to the line of the pole. There was evidence from which the jury was fully justified in finding that the denuded places were plainly visible to any one who looked at them from the street when standing near the foot of the pole, although if he were close to the pole, as he would be when about to climb it, they might not be apparent, being hidden by the pole or cross-arms. There was no regular periodical inspection of the poles and wires, but all linemen were instructed to be careful and to report any defects they might discover when working on the line.

The general manager of the defendant, who put the deceased to work, testified that he did not himself know before the accident of these two denuded places on the light wires.

Deceased...