Garfield v. Passumpsic Telephone Co
| Decision Date | 09 April 1917 |
| Parties | STANLEY F. GARFIELD v. PASSUMPSIC TELEPHONE CO |
| Court | Vermont Supreme Court |
October Term, 1915.
CASE FOR NEGLIGENCE. Plea, the general issue. Trial by jury at the June Term, 1914, Caledonia County, Butler, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.
Judgment reversed and cause remanded.
Dunnett & Leslie for the defendant.
Present MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.
The plaintiff was injured by the falling of a telephone pole on which he was working. The defendant was not the constructor of the line, but had owned and operated it over a year. The defect complained of was in the setting of the pole. The defendant moved for a directed verdict on grounds which raise the question whether the duty of inspecting the pole rested on the plaintiff or on the defendant.
It is the duty of the master to provide the servant with a reasonably safe place in which to work. But the rule has its exceptions. It is not applicable to places prepared by the servant as a means of carrying on the work he has undertaken to do. Garrow v. Miller, 72 Vt. 284, 47 A 1087. Nor is it applicable where the servant is practically making his working place by the changes incident to the work that is being carried on. Conroy v. Nelson 86 Vt. 175, 84 A. 737. Nor does it apply where it is necessary for the servant to work in the unsafe place to make the required repair. Anderson v. Howe Scale Co., 90 Vt. 244, 249, 97 A. 992; Metallic, etc Co. v. Watson, 51 Colo. 278, 117 P. 609, Ann. Cas. 1913A, 1276. The nature of a lineman's service is such that it cannot be said to be the duty of the company to furnish him a safe pole on which to work. Sias v. Consolidated Lighting Co., 73 Vt. 35, 50 A. 554. But this exception to the general rule is itself subject to an exception. It is not applicable to defects in original construction. The pole which was the basis of the comments and decision in the Sias case was rotten from long standing. In this case, shallow setting with insufficient bracing permitted the fall of a sound pole. The distinction presented by these cases has frequently been recognized and applied. Note, 21 L.R.A. (N.S.) 774, 778; Bland v. Shreveport, etc., Co., 48 La. Ann. 1057, 20 So. 284, 36 L.R.A. 114; Chisholm v. New England, etc., Co., 185 Mass. 82, 69 N.E. 1042; Livingway v. Houghton, etc., Co., 145 Mich. 86, 108 N.W. 662; Southern, etc., Co. v. Covington, 139 Ga. 566, 77 S.E. 382; Kelly v. Erie, etc., Co., 34 Minn. 321, 25 N.W. 706; McDonald v. Postal Telegraph Co., 22 R.I. 131, 46 A. 407.
The company which constructed this line owed to those who were to work upon its poles the duty of setting them in a manner reasonably safe with reference to the danger of the service. The defendant, as its successor in ownership and operation, became chargeable with the consequences of any negligence of its vendor in this respect, at some time differently indicated by the authorities, but at least as soon as it ought in the exercise of reasonable diligence to have learned of the defect. Atlantic, etc., Co. v. Reynolds, 117 Ga. 47, 43 S.E. 456.
A lineman assumes the ordinary risks incident to the duties of his employment. Drown v. N.E. Telephone & Telegraph Co., 80 Vt. 1, 14, 66 A. 801. But risks which ought not to exist and would not exist but for the employer's negligence are not classed as ordinary. Severance v. N.E. Talc Co., 72 Vt. 181, 47 A. 833. These the lineman does not assume unless he knew and comprehended them, or unless they were so obvious that the law will charge him with knowledge and comprehension. Miner v. Telephone Co., 83 Vt. 311, 318, 75 A. 653, 26 L.R.A. (N.S.) 1195. The defendant being charged with the duty of safe construction, the plaintiff had a right to assume that this pole was properly set, until something came to his notice from which he ought, in the exercise of reasonable prudence, to have learned that it was not. Eastman v. Curtis, 67 Vt. 432, 32 A. 232.
There was evidence that before the defendant bought the line its engineer and vice-president visited and made some examination of every pole, and that there had been a subsequent inspection of the line. The pole in question was surrounded by a mound of earth and stones; and there was evidence that an experienced lineman would understand from this that it lacked depth of setting, and that its safety would depend upon the sufficiency of the mound and the upper attachments. If the plaintiff was inexperienced in the work, and ignorant of the risks attending it and of the methods of avoiding them, and this was known or ought to have been known to the defendant, it was the defendant's duty to caution and instruct the plaintiff regarding them. Reynolds v. Boston & Maine R. R.64 Vt. 66, 24 A. 134, 33 Am. St. Rep. 908. If the defendant failed in the performance of this duty, the conduct of the plaintiff is to be considered and his duty measured with reference to this fact. Hayes v. Colchester Mills, 69 Vt. 1, 37 A. 269, 60 Am. St. Rep. 915.
The defendant argues that the plaintiff was an experienced lineman and therefore not entitled to instruction; but upon the evidence as it stands, which we do not deem it necessary to recite, we think this cannot be said as matter of law.
The only instruction claimed by the defendant, other than a general caution to be careful in climbing poles, was by means of a placard posted in the room where the linemen kept their tools and went to get materials. The defendant claims that the opportunity shown charges the plaintiff with the knowledge obtainable by a reading of this placard. But we think the question was for the jury. In any event, we think the requirement that the employee "make a personal inspection and examination of the condition of the poles" was not sufficient to charge the plaintiff with knowledge of what could be learned by digging to the bottom of the pole.
It is urged that there was no evidence tending to show negligence on the part of the defendant. It appears that the pole was set in the ground twenty inches instead of five feet because of a ledge of rocks, and that the surrounding mound was about three feet high; that one end of a plank was spiked to the pole about eight feet above the ground and the other end to a suitable post in a highway guard rail; that the pole was a junction pole, and carried four through wires running out in four directions at different angles. It is said that all the evidence showed that this was a proper and the usual method of setting a pole in the conditions existing at this place. But this left the sufficiency of the means taken to compensate for the shallow setting an open question, and obviously one of fact.
The defendant also claims that the plaintiff failed to produce evidence that he was free from contributory negligence. The plaintiff was one of three men sent out to cut away limbs that interfered with the line, straighten leaning poles, guy any that needed it, pull up slack wires, and replace broken glass. The mound of earth was concealed by bushes. The plaintiff did not go up the pole from the bottom, but went upon it by way of the plank. The pole was thirty feet above ground and had a slant of two feet. The purpose of ascending the pole was to straighten it and adjust the wires. It was to be made a test pole, and this required that the through wires be cut and "deadended" on double groove insulators. The plaintiff tied a rope to the top of the pole, and pulled on one of the wires with the "come-alongs," while the two men on the ground pulled on the rope. Defendant's evidence tended to show that at this point the plank was pried off the fence post to facilitate the straightening, but the plaintiff denied this; saying however that the pulling might have had some effect in loosening the nails. After the pole was straightened the plaintiff remained...
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