Larkin v. New York Tel. Co.

• Decision Date: 09 January 1917
• Citation: 220 N.Y. 27,114 N.E. 1043
• Parties: LARKIN v. NEW YORK TELEPHONE CO. et al.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 27

114 N.E. 1043

LARKIN

v.NEW YORK TELEPHONE CO. et al.

Court of Appeals of New York.

Jan. 9, 1917.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Delia Larkin, as administratrix of Michael Larkin, deceased, against the New York Telephone Company and another. A judgment of the Trial Term for the plaintiff, entered upon a verdict of a jury, was reversed by the Appellate Division (169 App. Div. 162,154 N. Y. Supp. 804), and plaintiff appeals. Order of Appellate Division reversed, and judgment of trial court affirmed.

See, also, 158 App. Div. 414,143 N. Y. Supp. 578.

Cuddeback, J., dissenting.John M. Ward, of New York City, for appellant.

Alexander Cameron, of New York City, for respondent Telephone Co.

John C. Robinson, of New York City, for respondent Electric Co.

POUND, J.

This is an action to enforce the common-law liability of defendants for negligence. Plaintiff's intestate was a cable splicer employed by the defendant telephone company. His death was due to an electric shock sustained by him in the course of his employment, while he was working on a pole and was about to splice some burned-out wires in a cable tap which ran from the main telephone cable down to a terminal box on the pole. The pole was used jointly by the defendants to carry both telephone and electric light wires, the electric light wires above and the telephone wires below. The negligence complained of, broadly speaking, is as follows: The electric light company is alleged to have created a dangerous condition by permitting improperly insulated wires carrying 2,300 volts of electricity to remain in proximity to the telephone wires, so that a contact between them was probable through sagging or breaking of wires. The result of a cross would be the discharge of a deadly current into the telephone wires, from which an accident to any one working on the telephone wires might reasonably be foreseen. Braun v. Buffalo G. E. Co., 200 N. Y. 484, 94 N. E. 206, 35 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370. The telephone company is alleged to have sent deceased to work in a place which had, to its knowledge, for two days before the accident, been unsafe from such conditions. The defendants contend that it was the duty of plaintiff's intestate to repair the dangerous condition; that the work in which he was engaged necessarily brought him into an unsafe place; that it would be absurd to apply to these conditions the rule requiring the master to provide a safe place (Mullin v. Genessee Co. Electric L., P. & G. Co., 202 N. Y. 275, 95 N. E. 689); that the rules of the company require each employe, at his own expense, to provide himself with rubber gloves, to exercise constant and extraordinary care in all situations where a condition of danger is or may be present, as when working in the vicinity of high potential conductors, particularly light or power wires, and where dangerous conditions exist, particularly in cases where repairs are being made to telephone circuits that are in trouble, to use such rubber gloves; and that Larkin's death was due to his own carelessness in handling the telephone wires with his bare hands.

[1] Two trials of the action have been had, each resulting in a verdict for the plaintiff. On the first appeal the Appellate Division reversed, holding that the deceased was guilty of deliberate disobedience and disregard of rules promulgated for his safety in doing work essentially dangerous in its character. On the second trial proof was adduced that it was the duty and custom of the telephone company to send a trouble hunter to locate the trouble, make tests, and remove danger, and thus to make the place safe for the cable splicer, and that it was negligent in this regard. The Appellate Division examined the facts sufficiently to hold that such proof presented a question for the jury as to whether the telephone company had adopted an unsafe and negligent method of having the work done (Greif v. Buffalo, L. & R. Ry. Co., 205 N. Y. 239, 250,98 N. E. 462); but it did not determine whether the proof was sufficient to uphold the verdict, because it still held that Larkin had violated a rule of the company and that plaintiff could not recover because he was not wearing rubber gloves at the time of the accident. The Appellate Division should now examine the facts in all cases. Code Civ. Proc. § 1338. Judgment was reversed, and a new trial granted, but no question of fact was specified in the order as being that upon which the reversal was held, and it must now be conclusively presumed that the reversal was upon the law.

[2] Broadly stated, the reversal is based upon this proposition: The employer must exercise due care to make the place safe and obviate all risks, except those inherent to the nature of the work (Smith v. Baker & Sons, [1891] A. C. 325, 362); but he may, if negligent in that regard, escape liability as matter of law if he has promulgated general rules requiring the employe to exercise ‘constant and extraordinary care in all...