Free v. Home Telephone Company
| Decision Date | 20 June 1917 |
| Docket Number | 9,304 |
| Citation | 116 N.E. 600,65 Ind.App. 9 |
| Parties | FREE v. HOME TELEPHONE COMPANY |
| Court | Indiana Appellate Court |
From Steuben Circuit Court; Dan M. Link, Judge.
Action by Clem L. Free against the Home Telephone Company. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Mountz & Brinkerhoff and Brown & Carlin, for appellant.
Elmer E. Stevenson and John G. Yeagley, for appellee.
While appellant, as appellee's employe, was engaged in dismantling one of appellee's telephone lines and specifically while endeavoring to remove a line of wire from its attachment to a certain pole which he had ascended for that purpose, the pole broke, precipitating appellant to the ground, whereby he suffered serious injuries. This action was brought by him to recover damages on account of such injuries. A trial resulted in a verdict for appellee, on which judgment was rendered and from which this appeal is prosecuted.
Appellant assigns as error the overruling of his motion for a new trial, and under such assignment challenges the sufficiency of the evidence and the correctness of certain instructions given by the court. The facts averred in the complaint essential to ascertaining its theory and to an intelligent comprehension of the questions involved are substantially as follows: Appellant was in appellee's employ as its local telephone manager at Pleasant Lake, in Steuben county. It was his duty to do general work for appellee in and about its exchange at Pleasant Lake, and on its lines extending thence into the adjacent territory, including erecting, dismantling repairing and rebuilding telephone lines. In doing such work it was frequently necessary for appellant to climb poles supporting appellee's wires. Reasonable care on appellee's part for appellant's safety required that all telephone poles maintained by it as a part of its lines should be solid, free from decay, and sufficiently strong to bear appellant's weight safely when he was required to ascend such poles in the discharge of his duties. On February 17, 1913, appellee directed appellant to take down and remove a line of wire extending from such exchange through the village of Hudson. In said village the line of wire was attached to a pole in front of a residence, to which pole were attached also other wires connecting said exchange with a telephone in said residence. In performing his work as directed, it was necessary for appellant to climb to the top of such pole. In obedience to appellee's orders, he did climb to the top of such pole for the purpose of removing therefrom the line of wire which he had been directed to take down. Appellee had negligently permitted such pole to become rotten and defective and was carelessly and negligently maintaining the pole in such condition so that it was not strong enough to bear appellant's weight. While appellant was upon such pole, as aforesaid, in the line of his duty, removing the wire therefrom as directed by appellee, by reason of its defective condition the pole broke and fell, and appellant was thereby thrown to the ground and injured as specifically alleged.
It will be observed that the negligence charged consisted in permitting the pole to become rotten, weak and defective, and in maintaining it in such condition.
The facts respecting appellant's relation to the company and the transaction in which he was injured, as testified to by him, are substantially as follows: Appellant was fifty years old, and had been working for appellee for seven years as manager of the Pleasant Lake exchange. His duties included the building, rebuilding, repairing and dismantling of telephone lines, and looking after the lines connected with the Pleasant Lake exchange. There were about 200 phones connected with that exchange. Appellee's central exchange and principal office were at Angola, in connection with which there was a secretary of the company and also an overseer of lines. When lines extending from the Pleasant Lake exchange were to be built, rebuilt or dismantled, the secretary or overseer at Angola issued general orders to appellant, and he thereupon proceeded to do the work. Two or three years prior to the time when appellant was injured, appellee acquired from a farmers' company a telephone line, thereafter designated as the "old farmers' line." This line was about five miles west of Pleasant Lake and extended a distance of three and one-half miles into and perhaps through the village of Hudson. It consisted of a single line of wire strung on native poles, such as black ash. Appellee, sometime prior to the time when appellant was injured, had abandoned the use of the line. In the village of Hudson one pole in the line, a black ash nine inches in diameter at the ground and six inches at the top and twenty-one feet high, stood in front of the residence of Mr. Fredericks, a patron of the Pleasant Lake exchange. The wires leading to his home extended from another line used by appellee a distance of about 180 feet across lots to the Fredericks phone, and were attached also to said pole. Several weeks prior to February 20, 1913, appellant received written instructions from the office at Angola to proceed to dismantle the old farmers' line. The work not having been done, the secretary of the company, on February 17, 1913, directed appellant to proceed with the work, and to take the line down before some one got hurt. Appellant, on his own initiative but with the consent of the secretary of the company, made arrangements with a Mr. Norman and a Mr. Zonker to assist in the work, they to receive the poles as compensation. Norman and Zonker were not employes of the company. Appellant, assisted by Norman and Zonker, proceeded to dismantle the old line, appellant being in charge of the work. They commenced at the end of the line remote from Hudson. In doing the work appellant testified that the poles were cut off at or near the surface of the ground. There was other evidence, and the jury so found in answer to an interrogatory that appellant in removing some of the poles broke them off at the surface of the ground by pushing against them. After about three miles of the line had been dismantled, appellant and his two assistants, on February 20, reached the pole standing in front of the Fredericks residence. Appellant had received no specific instructions respecting this pole. As the Fredericks wire was attached to it, he tested its solidity by striking against it with his hand, and concluded that it was solid and that he would therefore not take it down. He thereupon ascended it by the use of climbers and loosened the wire which he was taking down, whereupon the pole broke and fell, throwing appellant to the ground and injuring him seriously. The pole broke at the surface of the ground because it was decayed at that point.
Appellant was overseer of the lines connected with the Pleasant Lake exchange. Appellant constructed new lines and dismantled old and useless lines only on orders from the central office, but on receiving such orders he took charge of the work and saw that the orders were carried out. His orders on this occasion were general, simply that he tear down the old farmers' line. In erecting new lines and in using old poles for that purpose, he determined their fitness, and in dismantling old lines, he determined for himself whether the poles were sound or unsound. No one on this occasion gave him any information as to whether the poles were sound, but he acted on his own judgment, after testing them by striking against them with his hand. He had had a number of years' experience in telephone line work, both with appellee and other companies. Appellee, in placing him in charge of the work of dismantling lines, did not direct him as to the manner of doing the work. He understood on this occasion that he was to take down the entire line, both wire and poles. He had had wide experience in climbing poles. He was familiar with the work of erecting new lines and of dismantling old lines. This line was being dismantled because it was old, deteriorated and useless, and the company did not need it. In climbing the pole here appellant acted on his own judgment as to its soundness. Appellant was the exclusive judge as to how to do the work he was ordered to do. He exercised his own judgment on this occasion. Poles usually decay first right at the surface of the ground. He did not examine this pole at the surface of the ground because the ground was frozen. He was superintending the work of dismantling this line. He tested this pole by striking it with his hand, pronounced it safe in his own mind, and then climbed it. It was his duty to determine for himself the question of the safety of the pole, and he was to exercise his own judgment in the work of dismantling this line. Such is appellant's own account of his relation to appellee, and of the circumstances under which he was injured. It is not materially changed or affected by the other evidence in the case. We proceed to consider the sufficiency of the evidence in its relation to the issue of negligence.
The negligence charged is that appellee permitted said pole to become decayed and defective, and maintained it in that condition as a part of the line. There is no doubt that the pole, by reason of its decayed condition, had become defective in common with other poles in the line, and that appellee permitted it to continue in that condition. It remains to be determined, however, whether actionable negligence may be predicated on such facts. A charge of negligence may not be sustained except as based upon a failure to exercise reasonable care in the discharge of a duty. It is elementary that it is the duty of the employer to furnish to the employe a...
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