McDonald v. Postal Tel. Co.

• Decision Date: 28 May 1900
• Citation: 46 A. 407,22 R.I. 131
• Parties: MCDONALD v. POSTAL TEL. CO.
• Court: Rhode Island Supreme Court

46 A. 407

22 R.I. 131

MCDONALD

v. POSTAL TEL. CO.

Supreme Court of Rhode Island.

May 28, 1900.

Action by Alexander McDonald against the Postal Telegraph Company to recover for personal injuries. There was a verdict for plaintiff, and defendant petitions for a new trial. Denied.

David S. Baker and Lewis H. Waterman, for plaintiff. Tillinghast & Tillinghast, for defendant.

STINESS, J.The plaintiff, in the employ of the defendant as a lineman, fell from a pole on which he was at work, by reason of the breaking of a cross arm. His action is based upon the negligence of the defendant in providing a defective arm, through which a knot ran from one side to the other, obvious to proper inspection, which so weakened the arm as to make it unfit for use. The defendant's petition for a new trial is based upon the grounds of verdict against the evidence, erroneous rulings, and excessive damages.

The claim that the verdict is against the evidence covers both the negligence of the defendant and contributory negligence of the plaintiff. We cannot set aside the verdict upon either of these grounds. It is admitted that there was a knot in the arm, but there was a controversy as to its extent; the defendant claiming that the break was not caused by the knot, but by a weather crack, which could not be seen until after the break. Upon this question the jury was warranted in finding from the evidence that the knot extended through the arm,—all the way on one side, and part of the way on the other. According to the testimony of experts, including those of the defendant, if such a defect existed it would be a bad arm, and it would be the duty of an inspector to reject it. It also appeared in testimony that the arms had been painted before delivery to the defendant, but that such a knot would be discoverable on inspection, notwithstanding the paint. These were pure questions of fact, and, as the verdict was not clearly wrong, we cannot disturb it

As to the contributory negligence of the plaintiff, the claim of the defendant is that. if the defect was obvious, the plaintiff should have seen it, and was negligent in trusting himself to an arm obviously defective. This claim is in accordance with the general rule. Disano v. Brick Co., 20 R. I. 452, 40 Atl. 7; Larich v. Moles, 18 R. I. 513, 28 Atl. 661; Kelly v. Spring Co., 12 R. I. 112. But such a rule is not controlling in this case. A defect which may be discovered by an inspector, whose duty it is to look for it may easily and without negligence escape the notice of one who is engaged in some other duty. The application of the rule depends upon the circumstances of the case. Jones v. Railroad Co., 20 R. I. 210, 37 Atl. 1033; Burns v. Same, 20 R. I. 789, 38 Atl. 926; Whipple v. Same, 19 R. I. 587, 35 Atl. 305; Crandall v. Same, 19 R. I. 594, 35 Atl. 307. In this case the plaintiff had the right to assume that the arm had been properly inspected. It had been up only about two years—not long enough to lead him to look for decay. The painting had obscured the knot to some extent, at least, and it was partially covered on the top by the insulator, so that a climber would not be likely to see it upon a casual inspection. It is also claimed that the plaintiff was negligent in throwing his leg over the arm between the first and seconu pins, but there was testimony to show that this was necessary in order to reach the wire to be tied. Under such testimony, it was competent for the jury to find that there was no contributory negligence. Much stress was laid by the defendant upon the fact that the weather crack was not discernible, and that the break was through this crack. We should be quite ready to hold that a defendant would not be liable for such a defect, but it appears that the break was through the knothole, also. The jury must have based their verdict upon this fact because no reference to the weather crack is made in the special findings, and the jury found that the arm was not a proper one when it was put up, which was before the weather crack had developed.

We do not separately consider the refusals to nonsuit and to direct a verdict, because they are involved in the sufficiency of the evidence, and the correctness of rulings otherwise raised.

The principal objection to the rulings is that the court instructed the jury that the master is to furnish a reasonably safe cross arm, which, the defendant says, is equivalent to saying that a master insures the safety of the appliance. This court has already stated, and the trial judge also said, that a master is not an insurer against accidents, and that his duty is to furnish a reasonably safe place for work, and reasonably safe appliances. McCann v. Atlantic Mills, 20 R. I. 566, 40 Atl. 500; Healey v. Railroad Co., 20 R. I. 136, 37 Atl. 676. The defendant insisted that the ruling should be that the defendant must use reasonable care to furnish safe appliances. This is, in fact, what the trial judge ruled. The difference is one of words, rather than...