Roberts v. Missouri & K. Tel. Co.

• Decision Date: 17 December 1901
• Citation: 66 S.W. 155,166 Mo. 370
• Parties: ROBERTS v. MISSOURI & K. TEL. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

66 S.W. 155

166 Mo. 370.

ROBERTS v. MISSOURI & K. TEL. CO.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

TELEPHONE COMPANIES — DEFECTIVE APPLIANCES — CROSS-ARMS — LINEMAN — ASSUMPTION OF RISK — CONTRIBUTORY NEGLIGENCE — NEW TRIALS — RULING OF TRIAL COURT — RULE IN APPELLATE COURT — EXCEPTION.

1. A telephone lineman, charged by his employment with the duty of inspecting and repairing his employer's line, assumes by his contract of employment the risk arising from a defective cross-bar which breaks and causes his injury while he is repairing it.

2. Plaintiff, an experienced telephone lineman, charged with the duty of inspecting the lines, climbed out on a rotten cross-arm, which broke, causing his fall. He made no previous test of the cross-arm, though familiar with the ways of doing so, and though the condition of the arm was concealed by paint. He did not have a safety belt, though linemen furnished their own appliances, and his fellow workman had one. He knew that cross-arms rot in from six months to ten years, and that none could tell how long a particular one would last, and he had worked on this cross-arm several months before. Held, that he was guilty of contributory negligence as a matter of law.

3. The evidence showed that plaintiff had assumed the risk.

4. No verdict in favor of the plaintiff could be allowed to stand, and hence the case constitutes an exception to the rule that the appellate court will not reverse the ruling of the trial court in granting one new trial.

Appeal from circuit court, Buchanan county; W. K. James, Judge.

Action by Thomas Roberts against the Missouri & Kansas Telephone Company. From an order setting aside a nonsuit suffered by plaintiff, defendant appeals. Reversed.

Action for $11,000 damages for personal injuries received by the plaintiff on September 22, 1898, while in the employ of the defendant as a lineman. Upon a trial in the circuit court of Buchanan county the plaintiff suffered a nonsuit with leave, which that court afterwards set aside, and from which ruling the defendant appealed.

The petition alleges that the defendant, as a part of its plant, has a lead or line of wires in the city of St. Joseph running from the south part of Eleventh street to and through South Park; that such wires are suspended by cross-arms attached to poles about 30 feet high, and placed at intervals of about 100 feet; that the cross-arms are made of wood, about 2½ inches wide, about 4 inches deep, and about 8 feet long, and are fastened to the poles about 20 feet above the ground; "that this plaintiff was employed by the defendant on said 22d day of September, 1898, to fix and securely fasten the wires of said lead to the cross-arms above described, and to tighten the wires on the cross-arms above defendant's where they sagged down upon those of defendant; that in pursuance of his duties on said day he was negligently ordered to get upon one of said poles and cross-arms on said above-described line or lead in South Park, a suburb of the city of St. Joseph, as aforesaid, by defendant, acting through its foreman and manager in charge of this plaintiff and other men working with plaintiff on this line or lead on said day; that, in order to do the act and perform the work required by defendant, plaintiff ascended to the top of said pole, and was compelled to stand upon the cross-arm above described of said pole; that said cross-arm of wood had negligently been placed upon said pole in a rotten, unsafe condition, and remained there two years or more, and was or had negligently been allowed to become rotten, dangerous, and unsafe, which was well known to defendant, or might have been discovered and known to defendant by the exercise of ordinary care and diligence on its part, but was not known by plaintiff; that this plaintiff, while standing upon the cross-arm, as above stated, at the direction of defendant, and in the performance of his duty, was violently thrown and precipitated to the ground by reason of the said rotten cross-arm breaking, and by reason of the negligence of defendant as aforesaid, thereby crushing, mashing, and breaking this plaintiff's leg at the ankle." The answer admits the incorporation of the defendant, and that the plaintiff was in its employ as a lineman at the time he was injured; denies generally the allegations of the petition; and pleads affirmatively — First, that the injury was occasioned by one of the hazards or perils ordinarily incident to the employment of a lineman in the defendant's service; and, second, contributory negligence. The reply is a general denial.

The evidence showed the following facts: Plaintiff was 34 years old at the time of the accident, and for 8 years prior thereto had been working as a lineman for the Western Union Telegraph Company, the Missouri Electric Light Company of St. Louis, and at different times for the defendant. He was perfectly familiar with the duties of a lineman and of the risks incident to that work. He knew how to test a pole or cross-arm before going upon it to ascertain whether it was rotten or sound, safe or dangerous. He knew that the life of a cross-arm or a pin in a cross-arm was from six months to six, or even ten, years; and that they are liable to dry rot, and that no one can tell how long one will last. He had worked on this same line and upon this same pole and cross-arm, and had put this same peg or pin in this same cross-arm, and strung a wire to it, during the summer immediately preceding the accident. He knew that the tests for ascertaining whether a cross-arm was sound or rotten were to strike it with a hand axe or with the pliers, or to dig into it with a screw driver, or to drive a screw into it. He admits he made no test whatever of the cross-arm. He says it was painted, and appeared to be all right, but because it was painted its condition could only be ascertained by applying one of the tests mentioned. The pole was owned by the city, and had only two cross-arms. The top one was short, and carried the electric light wires; the lower one was a 10-pin cross-arm, about 10 or 12 feet long, and was owned by the defendant. It was mortised and bolted into the pole, and projected about 5 or 6 feet on each side of the pole. It was made of pine, and was 3¾ inches in perpendicular dimensions, by 1¼ inches in width. The pins or pegs are made of oak or ash, and are set in holes bored through the cross-arm. The wire the defendant had on the pole was called the "police circuit." Several days before the accident the line was reported to be in bad working order, and the plaintiff and J. W. Gates, another experienced lineman, were sent out from the defendant's office, to run over the line, repair it, and fix it up so that it would give better service. The plaintiff and all linemen in the defendant's service, and generally in all similar services, were required to supply themselves with the necessary tools to be used as linemen, which usually consisted of a pair of pliers, a screw driver, climbers, clamps, and a safety belt. The safety belt is worn by all linemen, and consisted of a belt or strap which went round the waist and the pole and fastened with "snaps," and was intended to prevent the lineman from falling while at work on the pole or cross-arm, and to enable him to work with both hands. It is from 3 to 6 feet long. Gates had all of the above-mentioned tools, including the safety belt. The plaintiff had all except a safety belt. The plaintiff and Gates started to repair and fix up the line. No foreman or superior officer went with them. They worked a day or two before the accident tightening wires, and doing whatever they found or deemed necessary to put the line in working order. Among other defects they found before they reached the pole and cross-arm in question were three or four cross-arms on other poles that were rotten and dangerous, and these they took out, and replaced them with new ones, which they got from the supply the defendant kept on hand for the purpose. They also tightened up the wires wherever they sagged, as they also did the electric wires wherever they sagged down upon the telephone wires and interfered with the latter wires. When they reached the pole where the accident happened, about 11 o'clock in the morning, the plaintiff climbed the pole first, and got above the lower cross-arm, — the defendant's, — on the north side of the pole, and Gates climbed up the south side of the pole, and stopped with his waist at the cross-arm. They found that the electric wire on the top cross-arm sagged down so as to come in contact with the telephone wire on the lower cross-arm. They worked about an hour tightening the wires, and during that time the plaintiff stood upon the defendant's cross-arm, but close up to the pole. Gates got out on his side of the cross-arm, and tied a wire, and the cross-arm bore his weight, but he was a lighter man than the plaintiff, who was over 5 feet 9 inches in height and weighed over 150 pounds. During the time they were at work, the peg or pin to which defendant's wire on the north side of the pole, where the plaintiff was working, broke, because of the strain of the wire upon it, which was greater because the wires ran from that pole at an angle. The plaintiff noticed the broken peg, and examined it, and found that it was rotten. When they had finished tightening the wires, the plaintiff unfastened the wire from the broken peg, and stepped out on the cross-arm about two feet from the pole for the purpose of tying the wire to the next peg further out on the cross-arm. When he did so, the cross-arm broke, he was thrown to the ground, and his leg broken. Afterwards it was discovered that the cross-arm was defective, having been affected with the dry rot. At the close of the plaintiff's case the defendant demurred to the evidence. The demurrer was sustained, and the plaintiff took a nonsuit, with leave, which the court afterwards set...