Miner v. Franklin County Tel. Co.

• Decision Date: 05 March 1910
• Citation: Miner v. Franklin County Tel. Co., 83 Vt. 311, 75 A. 653 (Vt. 1910)
• Parties: MINER v. FRANKLIN COUNTY TELEPHONE CO.
• Court: Vermont Supreme Court

75 A. 653

83 Vt. 311

MINER

v. FRANKLIN COUNTY TELEPHONE CO.

Supreme Court of Vermont. Franklin.

March 5, 1910.

Exceptions from Franklin County Court; George M. Powers, Judge.

Action by Ernest F. Miner against the Franklin County Telephone Company.There was a judgment for plaintiff, and defendant brings exceptions.Affirmed.

Elmer Johnson and John W. Redmond, for plaintiff.

Hunton & Stickney, for defendant.

MUNSON, J.The plaintiff, an employé of the defendant telephone company, was injured while on a pole of the Vermont Power & Manufacturing Company, by coming in contact with the electric wires of the power company.The defendant telephone company and the Vermont Power & Manufacturing Company were, respectively, the successors of the New England Telephone Company and the St. Albans Electric Light & Power Company, and as such took the respective rights of those companies under an agreement they had regarding the use of their plants.This agreement provided that either party might attach its wires to the poles of the other by paying a certain rental for each attachment, but that nothing done under the agreement should operate to give either any ownership in the poles of the other.It did not appear that the plaintiff had any knowledge of this agreement.The pole where the plaintiff received his injury was one on which the defendant had long kept its wires by virtue of this agreement, but about six weeks before the accident it had transferred all its wires and attachments from this pole to a pole of its own standing about five feet from it The agreement mentioned was in force at the time of the accident, but the evidence of the defendant tended to show that it had ceased paying rent for this pole, and had abandoned and lost all its rights thereto.The defendant excepted to the refusal of the court to direct a verdict in its favor, and to certain portions of the charge at variance with the grounds taken in its motion.The points relied upon can be covered by a review of the case without referring to the exceptions in detail.

The day before the accident a cable seat had been attached to this power company pole by defendant's employés, to be used in splicing the defendant's cable.On the day of the accident defendant's foreman said to the linemen that they would go down and splice the cable, and all went together to this point On arriving there, the foreman told the plaintiff and another lineman to go to a certain place and get a ladder.They were unable to get it, and the plaintiff so reported to the foreman on their return.The foreman was then on the cable seat, with his materials at hand, and was just commencing the work of splicing.After watching him awhile, the plaintiff said he guessed he would go up and help him, and received no reply.The plaintiff then ascended this pole, and stood on an upper cross-arm, and handed the sleeves to the foreman as he needed them, the foreman taking them from him and using them as he proceeded with the splicing.After working in this manner about 20 minutes, the foreman placed the bag containing the sleeves on the other side of him, which put them beyond the plaintiff's reach; and after looking on awhile the plaintiff said he guessed he would go down, and proceeded to do so, receiving therein the injury complained of.These were circumstances tending to show that the plaintiff was in the performance of his duty when he received the injury.The voluntary offer of a willing servant to make himself useful in a matter not covered by any express command, when the proffered service is accepted by his superior, although not by an approval expressed in words, cannot be said as matter of law to put the servant outside the limits of his employment.During the interval between the removal of defendant's wires from this pole and the placing of the cable seat upon it, defendant's foreman ascended it two or three times to inspect the cable.The cable seat was attached to the pole by the foreman himself, assisted by one of his men; both going up the pole for that purpose.The use of the pole in connection with the making of this splice was convenient, but not necessary, and was a use of it not provided for in the agreement above mentioned.It did not appear whether the telephone company or the power company had knowledge that the pole was being so used.We think the undisputed facts regarding the acts of the foreman show an adoption of this pole as a means of access to the work to be performed.This was not an unauthorized use by a lineman of the property of a stranger of his own choice, as in Yearsley v. Sunset Tel., etc., Co., 110 Cal. 230, 42 Pac. 638.It was not a casual use of the pole of another company to overcome a difficulty which was found to interfere with a work then being done, as in Dixon v. W. U. Telegraph Co. (C. C.)71 Fed. 143.The foreman had planned and arranged to use this pole in splicing the defendant's cable, and the men had a right to assume, as against the defendant, that they were entitled to use it for that purpose.They were brought there to do the work, and no other provision was made for reaching it.The plaintiff was not bound to know that all the defendant's right to the use of the pole had ceased with the removal of its wires; for while the previous occupancy may have given him reason to suppose that the defendant had some arrangement with the power company for the use of its poles, this did not charge him with the duty of inquiring what that arrangement was.Robinson v. St. Johnsbury, etc., R. R. Co., 80 Vt. 129, 66 Atl. 814, 9 L, R. A. (N. S.) 1249.

The defendant argues that the duty to make a place safe to work in depends upon ownership or control, and refers to the case just cited in support of its claim.But the two cases are not alike.In that casethe plaintiff dealt with his employer in recognition of the fact that his entire service was to be in trains and upon tracks and with employés belonging to other parties, who would be responsible for his transportation, and over whom his employer would have no control.In this casethe plaintiff was permitted to work for the defendant in a dangerous place, in ignorance of the circumstances which are now claimed to have relieved the defendant from all responsibility for his safety, while leaving him without other remedy.The position taken is not tenable.The defendant saw fit to adopt this method of reaching and repairing its cable, instead of using its swing platform, which would have enabled it to do the work without using the property of another.Having made this use of property which it did not undertake to inspect and had no right to repair, it was answerable to the plaintiff for any result which reasonable Inspection and repair would have prevented.We think the question of liability is to be determined as it would be if this pole and the wires attached to it had been a part of defendant's plant.It was the duty of the defendant to use reasonable care to provide for its employés a reasonably safe place in which to do this work, and this included a reasonably safe means of approach as regards the wires.The plaintiff understood that some of his work would be on poles carrying insulated power wires, and he assumed the risks ordinarily incident to such an employment; but this did not include risks which were due to the defendant's want of proper care, unless they were risks which he knew and comprehended, or risks so obvious that the law would charge him with knowledge and comprehension.Drown v. N. E. Telegraph, etc., Co., 80 Vt. 1, 14, 66 Atl. 801.It is not claimed but that there was evidence tending to charge the defendant with negligence, if it is to be held accountable for this pole; and the question whether the risks due to its negligence were...