Dixon v. Western Union Telegraph Co.

• Decision Date: 26 December 1895
• Docket Number: 9,207.
• Citation: 71 F. 143
• Parties: DIXON v. WESTERN UNION TEL. CO.
• Court: United States Circuit Court, District of Indiana

71 F. 143

DIXON v. WESTERN UNION TEL. CO.

No. 9,207.

United States Circuit Court, D. Indiana.

December 26, 1895

Finch &amp Finch and Dunn & Love, for plaintiff.

Butler Snow & Butler and Chambers, Pickens & Moore, for defendant.

BAKER District Judge.

The third paragraph of the complaint, to which a demurrer has been interposed for want of facts, does not aver that the telephone pole belonged to, or was under the control of, the defendant; and, from the fact that it is only empowered to erect and use poles for telegraphic purposes, the court must assume that the defective and unsafe telephone pole belonged to another company, and that the defendant had no interest in, or right of control over, it. The sole ground of negligence charged is in the failure of the defendant and its foreman to inspect the telephone pole and the spikes which had been driven therein, before directing the plaintiff to climb it. It is also alleged that the defendant and its foreman failed to notify the plaintiff that the pole had not been inspected. But, unless the defendant was bound to inspect the pole before directing the plaintiff to climb it it is not apparent how it could be held responsible for failure to notify him that it had not done something which it was under no obligation to do. The true question, then, is this: Is the defendant responsible to the plaintiff for failure to inspect a telephone pole which does not belong to it, and over which it has no control, but which was casually used as a means of removing an obstructing wire or wires which hindered the erection of a telegraph pole which the plaintiff, with others, was engaged in putting up? It is not averred that there is or was any custom, in the line of service in which the plaintiff was employed, making it the duty of the defendant to inspect telephone poles belonging to another company, which its employes might have occasion casually to climb in the performance of their duties; nor is it alleged that the defendant was under any duty, arising out of contract, to make such inspection. Therefore the duty of inspection, under the circumstances, if any such duty existed, was one imposed by law upon the defendant. Under the circumstances disclosed in this paragraph of the complaint, it does not seem to me that the law governing the relation of master and servant casts any absolute duty of inspection on the defendant, so that the mere failure to inspect the...