Pacific Tel. & Tel. Co. v. Starr

• Decision Date: 07 July 1913
• Docket Number: 2,242.
• Citation: 206 F. 157
• Parties: PACIFIC TELEPHONE & TELEGRAPH CO. v. STARR.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F. 157

PACIFIC TELEPHONE & TELEGRAPH CO. v. STARR.

No. 2,242.

United States Court of Appeals, Ninth Circuit.

July 7, 1913

Pillsbury Madison & Sutro, of San Francisco, Cal., and Hughes McMicken, Dovell & Ramsey, of Seattle, Wash., for plaintiff in error.

C. A Reynolds, Harry Ballinger, and Charles T. Hutson, all of Seattle, Wash., for defendant in error.

Before GILBERT, Circuit Judge, and WOLVERTON and DIETRICH, District judges.

WOLVERTON District Judge.

The defendant in error, who was plaintiff below, while engaged in cleating a cable through which were carried telephone wires to the side wall of a building in Seattle, Wash., fell from near the top of a ladder to the pavement below, a distance of from 20 to 25 feet, and was severely injured. Starr was in the employ of the Pacific Telephone & Telegraph Company at the time, to perform the service in which he was then engaged. The immediate cause of the accident was a defective round in the ladder, being the second from the top, which gave way. The round consisted of a board from 2 1/2 to 3 inches in width by about three-quarters of an inch in thickness, which was sawed across the grain. With the weight of Starr upon it, it split out with the grain diagonally across the piece.

For the injury thus sustained Starr sues to recover damages. The action is based upon the negligence of the company in furnishing the plaintiff with a defective and unsafe ladder upon which to perform his work, and in failing to properly inspect such ladder, or to exercise reasonable work, and in failing to properly inspect such ladder, or to exercise reasonable care and precaution in the selection of the same for plaintiff's use. For the particular work in hand a long extension ladder had been brought from the company's supply, and, finding that other ladders were needed, at the direction of George E. Smith, the foreman, two short ladders were picked up in the vicinity, one by Filer and another by McCartney, two men also working with plaintiff, there being six men working at the time. It being made known to Smith that another long ladder was needed, he directed the men to splice the two short ladders picked up by Filer and McCartney. This was done by Starr, the plaintiff, and McCartney, and no defect developed in the splicing. The ladders were spliced the day before the accident occurred.

The following is in effect a brief resume of the testimony so far as deemed pertinent for application of the proper legal principles which control the case:

George E. Smith, who was foreman of the gang that was at work at the time for the defendant company, testified that a majority of the ladders was supplied by the telephone company; that as a general thing he got the ladders, that is, when they were telephone ladders; that it was not always possible to get a sufficient number of ladders from the telephone company, and in that emergency if he (Smith) was around he always told the men to borrow them-- to get them. As respects the ladder in controversy, he further says that it consisted of two pieces; that he knew where the top piece came from-- it was borrowed by Filer a couple of days before the accident; that Filer used the top piece for a while in putting up terminal boxes for connecting wires with the cable, these boxes being from 7 to 8 feet from the ground, and the ladder about 6 feet long; that the ladder was weather-beaten, the sides being dressed and the boards or cross-pieces rough, and the whole ladder was of fir. He further testified that cross-grained sticks are not usually used for rounds of ladders; that he was at the place of the accident substantially every day, and saw the ladders in use during the time before the accident; that he had a conversation with the men in the presence of Starr concerning the ladders; that they wanted a longer ladder to get up on the building with, and he told them to splice the two short ladders together and use them; that he did not observe any cross-grained round in the shorter ladder of the two, such condition not being apparent, and he did not think it would be apparent without a special inspection of the round; that he made no inspection of either of the ladders. On cross-examination he further testified that whenever the men were stringing a cable he was always right there.

Thomas McCartney testified that he was working with Starr at the time; that the extension ladder was furnished by the company; that it was the understanding that the company should furnish the ladder; that it did not always provide a sufficient number of ladders for the use of the men, and when the company failed in that respect the men 'used to have to rustle around the alleys and get them'; that this was done by the order of the foreman; that he thought Filer borrowed the short ladder, that being the topmost piece of the spliced ladder, and he (the witness) borrowed the longer piece; that the rounds were nailed to the side pieces of the ladder, not notched in; that he did not observe any cross-grained rounds in the ladder--they were not apparent to a person with ordinary use of the ladder-- and that the use of a cross-grained piece would not be safe; that the men asked the foreman for some ladders to do the work; that the foreman replied that the men would have to rustle for them, and then, after the ladders were procured, he directed them to be spliced.

R. D. McMellon testified that George Smith was the foreman in charge at the time; that the company was supposed to furnish ladders, though it did not always furnish them; that when the job required a large number of ladders the foreman directed the men to borrow them, and this they did; he heard Smith tell two of the boys to splice the two ladders together; that the ladder in question was unpainted and roughly finished; that he examined the rung of the ladder at the time, and it was broken-- that is, split 'kind of crossways,' and the larger piece was hanging down-- that was after the accident; that the condition of the board before the accident would have been observable if one had made a close inspection of it. On cross-examination he testified:

'Q. Now, how close an inspection would it have required to see that this rung which broke was cross-grained? A. Well, I imagine it would have taken a careful examination of it before the accident. Q. How do you mean; how careful? A. Well, if a man got right down and probably examined the wood real carefully and close he could have noticed it. Q. Suppose Smith had examined it to determine whether it was cross-grained or not, what would he have had to have done; would he have had to scrape the timber? A. I think not. Q. He wouldn't had to have done that? A. No. Q. Would he have had to use a magnifying glass? A. I wouldn't judge he would have. Q. You mean to say Smith could have seen it with his naked eye, if he had just taken the ladder in his hand and looked at it? A. I think he could, yes; if he had looked at it closely. Q. How long would it have taken him to do that? A. I shouldn't judge it would have taken very long. Q. Could he have done it in an instant? A. No; I think not. Q. He wouldn't have had to cut into the grain, or anything of that kind? A. It wouldn't have taken him very long to examine the one rung. Q. He wouldn't have had to scrape the timber, or cut into it at all? A. I think not. I don't know. He might have.'

Other witnesses-- Werner and Dalton-- testified along the same line.

The...