Hulse v. Home Telephone Co.

• Decision Date: 13 May 1912
• Citation: 147 S.W. 1124
• Parties: HULSE v. HOME TELEPHONE CO.
• Court: Missouri Court of Appeals

147 S.W. 1124

HULSE v. HOME TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

May 13, 1912.

Rehearing Denied June 3, 1912.

1. MASTER AND SERVANT (§ 124) — INJURIES TO SERVANT — TELEPHONE LINEMAN — SAFE POLES — INSPECTION.

A telephone company owes to its linemen the same duty to inspect and furnish them with a reasonably safe place to work that all other masters owe to their servants in that regard.

2. MASTER AND SERVANT (§ 217) — INJURIES TO SERVANT — TELEPHONE LINEMEN — ASSUMED RISK.

Plaintiff, a telephone lineman, knew that defendant did not make any independent inspection of poles before requiring linemen to work on them, but depended on the linemen themselves to inspect. Plaintiff's foreman directed him to go up a certain pole and cut the wires. Plaintiff walked up against the pole he was to climb, gave it a couple of shakes, and, as it seemed solid, climbed it, and on cutting the wires the pole fell and plaintiff was injured. Plaintiff testified that the ordinary way of testing decay at the bottom of the pole was either to take the dirt away with a shovel or drive in a chisel or screw-driver, which tools were at hand and might have been used. Held, that plaintiff assumed the risk of defendant's failure to make an independent inspection.

Appeal from Circuit Court, Buchanan County; Wm. K. Amick, Judge.

Action by Charles I. Hulse against the Home Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed.

Wm. E. Stringfellow, of St. Joseph, for appellant. John D. McNeely and B. J. Casteel, both of St. Joseph, for respondent.

ELLISON, J.

Plaintiff was what is known as a "lineman" in the defendant telephone company's employ in the city of St. Joseph, Mo. He climbed a pole to which defendant's wires were attached for the purpose of cutting "dead wires." When he cut the wires the pole was left without some of its support and fell with plaintiff to the ground, injuring him severely. He recovered judgment in the trial court.

Defendant's chief objection is that the case made for plaintiff by the evidence in his behalf is insufficient in law to support a judgment. It appears from the testimony introduced by plaintiff that defendant operated a telephone line in the city of St. Joseph, Mo., and that he was a lineman of 10 years' experience and had been working for defendant for several months. That, on the morning he was hurt, the defendant sent him and another lineman and a groundman (a man who worked on the ground) to cut out, or cut off, of the poles what are called "dead wires." The other lineman was in charge or control of the work, and plaintiff designated him as the foreman, and so we will treat him. On the morning of October 8, 1909, he and the two others were sent out in a wagon with tools to cut out dead wires. The mode of work suggested by the foreman was for him to climb the first pole while plaintiff climbed the next one further on; the foreman was to cut the dead wires and plaintiff, seeing the foreman cut the wires, would then cut the same on his pole. The foreman was then to descend, pass plaintiff at his pole, and go on to the next, when he was to climb it and cut wires as before, then plaintiff was to go by the foreman to the next pole and go through the same work. Thus they were to alternate. When they arrived at the place to begin work on the morning in question, the foreman said he would go up the pole at which they were standing and plaintiff would go to the next one, which was about one-half block further on, and, when he saw that the foreman had cut the wires, he (plaintiff) would cut the same ones at his pole. The third, or groundman, was sent to a house opposite to plaintiff's pole and across the street from it, where he was to go up a ladder on a porch and cut a couple of wires that ran over from plaintiff's pole. Plaintiff went down to the next pole as directed. He said, "I walked up against the pole and give it a couple of shakes and it seemed to be solid, so I went up," and that "that was the customary inspection." After going up, he cut the wires the foreman had cut, and then reached over to cut the wires the groundman had been directed to cut. The reason he gave for cutting these was that he got to them before the groundman across the street got to the other end of them, and that when he "cut it let me into the street"; that is, when he cut these wires the pole, only being supported by wires running in another direction, fell, and he received his injuries. It was then seen that, while the pole looked sound at the bottom, it was so rotted on the inside as to be unable to stand after the supporting wires running across to the house were cut.

In many of the states the rule is stated absolute that a telephone company is not expected to have inspectors of its poles other than the linemen themselves. Sias v. Consolidated Lighting Co., 73 Vt. 35, 50 Atl. 554; McIsaac v. Northampton Electric Lighting Co., 172 Mass. 89, 51 N. E. 524, 70 Am. St. Rep. 244; Tanner v. New York, N. H. & H. R. R., 180 Mass. 572, 62 N. E. 993; De Frates v. Chicago Union Tel. Co., 243 Ill. 356, 90 N. E. 719; Krimmel v. Edison Illuminating Co., 130 Mich. 613, 90 N. W. 336; Lynch v. Saginaw Valley Traction Co., 153 Mich. 174, 116 N. W. 983, 21 L. R. A. (N. S.) 774; Griffin v. New York Tel. Co., 141 App Div. 1, 125 N. Y. Supp. 642; Saxton v. Telephone Co., 81 Minn. 314, 84 N. W. 109.

Other states make no distinction between telegraph and telephone companies and their linemen and any other relation of master and servant and, except where the situation and nature of the service may be different, require the master in such case to furnish the servant with reasonably safe appliances and a reasonably safe place in which to work. In an elaborate opinion by Judge Woodson in...