Mullin v. Genesee Cnty. Elec. Light

Decision Date30 May 1911
Citation202 N.Y. 275,95 N.E. 689
CourtNew York Court of Appeals Court of Appeals
PartiesMULLIN v. GENESEE COUNTY ELECTRIC LIGHT, POWER & GAS CO.

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by John Mullin against the Genesee County Electric Light, Power & Gas Company. From a judgment of the Appellate Division in the Fourth Department (136 App. Div. 913,120 N. Y. Supp. 1136), affirming a judgment entered upon a verdict for plaintiff, defendant appeals. Reversed, and new trial granted.

Safford E. North, for appellant.

John J. McInerney, for respondent.

WERNER, J.

The plaintiff, a lineman employed by the defendant on the 18th day of July, 1907, was injured by the falling of a pole which was part of a line of wires then in course of construction in Genesee county for the transmission of electric power. The action was commenced under the employer's liability act (Consol. Laws 1909, c. 31), and the notice required by that statute seems to have been served. That theory was abandoned at the trial, however, and the case went to the jury as one at common law, involving the question whether the defendant, as employer, had discharged its duty to the plaintiff to furnish him a reasonablysafe place in which to work. Had there been an adherence at the trial to the theory of the complaint that this is an action properly brought under the employer's liability act, it is quite probable that the plaintiff would have succeeded in getting a verdict which he could have sustained on appeal; but his determination to present his cause of action as one at common law has brought into the case a common-law rule which is fatal to his judgment.

The record discloses that at the time of the accident to the plaintiff the defendant was engaged in constructing through Genesee county a line of poles and wires for the conveyance of electric power. The plaintiff, an experienced lineman, had worked for the defendant about nine days previous to the accident. The force of men engaged in the construction of this line was divided into ‘gangs,’ each of which performed different parts of the work, but all were subject to the control of a superintendent and a foreman, both of whom gave orders and hired and discharged men. Broadly stated, the force was divided into the ‘ground men,’ who dug the holes; the ‘framers,’ who trimmed and prepared the poles; the ‘pole setters,’ who placed the poles; and the ‘linemen,’ who strung the wires. That this division of labor was not strictly observed is evidence from the fact that the plaintiff, although a lineman, had assisted in trimming poles. He had nothing to do, however, with the digging of the holes or the setting of the poles. On the day of the accident he was engaged with others in stringing wires. The ends of the wires, three in number, were fastened into holes drilled into a triangular piece of iron, called a ‘running board,’ at the opposite end of which there was another hole, into which was fastened a heavy rope. This rope was thrown over the crossarm on the first pole, a team was attached to the further end of the rope, and the line was thus drawn forward until the running board reached the cross-arm, where a lineman was stationed, who gave the signal for the team to stop until he could lift the running board so that it would clear the cross-arm, and when this had been done the teamster was signaled to go forward. This process was repeated from pole to pole. When the line reached a pole at which the plaintiff had been stationed, he ascended. The running board had nearly reached the pole when he gave the teamster the usual signal to stop. Having lifted the running board so that it would clear the cross-arm, he gave the signal to go on. At that juncture the strain of the line caused the pole to fall, and the plaintiff was thrown to the ground with such violence as to sustain personal injuries. It appears that this pole was one of a number which had been set in low, soft, marshy earth. There was evidence which would have justified the jury in finding that this particular pole had not been properly set, and that this circumstance had been brought to the attention of defendant's foreman before the happening of the accident to the plaintiff. There was other testimony from which the jury were also authorized to find that the plaintiff had nothing to do with the setting of this pole, that he had no actual knowledge of its unsafe condition, and was not chargeable with notice thereof.

At the close of the plaintiff's case the counsel for the defendant moved for a nonsuit upon the usual ground that the plaintiff had failed to establish negligence on the part of the defendant, and on the further ground ‘that the negligence, if...

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35 cases
  • Indianapolis Traction & Terminal Co. v. Mathews
    • United States
    • Indiana Supreme Court
    • 31 Enero 1912
    ...83 N. E. 369, and cases cited, 17 L. R. A. (N. S.) 542, 546, 550;Shatrau v. Sullivan, 201 N. Y. 567, 94 N. E. 609;Mullin v. Genesee, etc., Co., 202 N. Y. 275, 95 N. E. 689, 691. As we have already said, a duty of the employer to the employé cannot be implied from the mere allegation that th......
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    • 31 Enero 1912
    ... ... signal light thereon, and carelessly and negligently backed ... the ... 567, ... [97 N.E. 324] ... 609; Mullin v. Genesee County, etc., Co ... (1911), 202 N.Y. 275, ... ...
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    • 13 Enero 1914
    ... ... Phoenix Iron Co., 182 Pa. 109, 37 A. 927; Mullin v ... Genesee Electric, etc., Co., 202 N.Y. 275, 95 N.E ... ...
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