Kellogg v. Denver City Tramway Co.

• Decision Date: 11 May 1903
• Citation: 18 Colo.App. 475,72 P. 609
• Parties: KELLOGG v. DENVER CITY TRAMWAY CO.
• Court: Colorado Court of Appeals

72 P. 609

18 Colo.App. 475

KELLOGG v. DENVER CITY TRAMWAY CO.

Court of Appeals of Colorado

May 11, 1903

Appeal from District Court, Arapahoe County.

Action by Charles M. Kellogg against the Denver City Tramway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

S.L. Carpenter and John T. Bottom, for appellant.

A.M Stevenson and Charles J. Hughes, for appellee.

MAXWELL J.

This was an action by the plaintiff to recover damages for the alleged negligence of the defendant's predecessor, the Denver Consolidated Tramway Company, which corporation, by a consolidation with another corporation, became the defendant herein. Trial to a jury. At the close of plaintiff's evidence defendant's motion to instruct the jury to return a verdict for the defendant was granted. Judgment was rendered in favor of defendant on the verdict, and plaintiff appeals.

Plaintiff was employed by defendant as a lineman, and was injured by the breaking and falling of a pole upon which he was working. Plaintiff testified that at the time of the accident he was 27 years old, had been working as a lineman for the company for about 3 months, and had been engaged in the business of lineman and electric work for about 8 years. On the day when the accident occurred he was working, with two other employés of the company, resetting poles, changing wires, and placing back guys; that immediately preceding the accident he had ascended a pole and removed a wire therefrom; that this pole had been braced with two pike poles, as Parker, who seemed to be in charge of the work, said it was rotten; that he was then ordered by Parker to splice the wire just removed from the pole, and place it on the pole which subsequently broke. Plaintiff asked Parker if he intended to guy this pole, as there would be an added strain placed upon the pole. Parker replied that the pole had been tested the day before by digging down and testing it with a bar, and that it was perfectly sound. Plaintiff ascended the pole, which stood 25 or 30 feet above the ground, put the wire in position, put on a small block and tackle, and commenced to pull up the slack, when the pole broke, and carried plaintiff with it to the ground, seriously injuring him by the fall, and by bringing him in contact with live electric wires. Plaintiff further testified that he was hired by a Mr. Matthews; that Parker was the foreman, and worked with the linemen; that there were pike poles, grab hooks, and other appliances for strengthening and bracing poles on the repair car at or near the place where the accident occurred; that the pole which broke was 10 or 12 inches large at the top, and larger at the bottom; that it broke at the surface of the ground; that before he ascended the pole he made no examination whatever to determine whether the pole was safe or unsafe; that he did not know how old the pole was; that it appeared to be like the other pole which was braced with pike poles; that in the performance of his duties he frequently had to climb poles reset poles and wires, and remove decayed poles. Elliott, a witness for plaintiff, testified to substantially the same facts; that he made no examination of the pole; that dry rot at the surface of the ground caused it to break; that plaintiff did nothing to test the pole before climbing it except to...