Rutledge v. Swinney

• Decision Date: 07 April 1913
• Citation: 156 S.W. 478,170 Mo.App. 250
• Parties: FRANK W. RUTLEDGE, Respondent, v. E. F. SWINNEY and W. H. POWELL, Receivers of the SEDALIA LIGHT & TRACTION COMPANY, a Corporation, Appellants
• Court: Kansas Court of Appeals

156 S.W. 478

170 Mo.App. 250

FRANK W. RUTLEDGE, Respondent, v. E. F. SWINNEY and W. H. POWELL, Receivers of the SEDALIA LIGHT & TRACTION COMPANY, a Corporation, Appellants

Court of Appeals of Missouri, Kansas City

April 7, 1913

Appeal from Pettis Circuit Court.--Hon. H. B. Shain, Judge.

Judgment reversed and cause remanded.

G. F Longan and Seddon & Holland for appellants.

(1) The court should have given the peremptory instruction asked by appellants at the close of the evidence: Because the petition does not state that the cross arm and pins referred to in the petition were furnished for the purpose of bearing the weight of linemen. York v. Railroad, 117 Mo. 405; Sindlinger v. City of Kansas, 126 Mo. 315; Kelly v. Lawrence, 195 Mo. 75; Roberts v. Telephone Co., 166 Mo. 369; Telegraph Co. v. Speicher, 59 N. J. L. 23. (2) Because the testimony showed that the cross arm and pins in question were not furnished for the purpose of bearing the weight of linemen. (3) Because it was the duty of respondent to make his own inspections and the evidence in this case, shows he made none. Smith v. Light & Power Co., 143 Mo. 572; Forbes v. Dunavant, 198 Mo 193; McIsaacs v. Electric Light Co., 172 Mo. 89; Flood v. Telegraph Co., 131 N.Y. 603; McGorty v. New England Tel. Co., 69 Conn. 635.

Chales E. Yeater and Montgomery & Montgomery for respondent.

(1) It is not necessary for a recovery by plaintiff to either plead or prove that the cross arms and pins were furnished for the purpose of bearing the weight of linemen. The petition alleges that this cross arm was defective, and a part of the place where plaintiff had to work and that by reason of defendant's negligent failure to inspect the same and make the place safe plaintiff while there working was injured. Under the facts and circumstances in evidence it was impossible for plaintiff to reach the pole and it was necessary for him to steady himself by placing his hand on the cross arm and thus keep his balance, in order to avoid falling, while he removed his safety belt so as to ascend the pole, and such would have been the case with any lineman undertaking to climb this particular pole, and consequently this pole was not a safe place at which to work with the defective cross arm, and this very issue of fact was fairly put to the jury by defendants' instruction 8 and determined by the verdict for the plaintiff. McDonald v Postal Tel. Co., 46 A. 407; Brimer v. Railroad, 109 Mo.App. 493; Palmer v. Kinloch Tel. Co., 91 Mo.App. 107; Winscott v. Railroad, 151 Mo.App. 378; Woods Admx. v. Railroad, 104 Va. 650, 52 S.E. 371; McIntyre v. Railroad, 163 Mass. 189, 39 N.E. 1012; Rigsby v. Oil Well Supply Co., 115 Mo.App. 308; Lee v. Railroad, 112 Mo.App. 372; Porter v. Railroad, 71 Mo. 77, et seq. (2) The law does not impose a comprehensive inspection for hidden defects of the place where he is to work upon the servant working under a foreman, and the doctrine applied thereto of equal or better opportunity in defendants' refused instruction 5 has been repeatedly denied in this State, and expressly in the recent Corby case. Nicholds v. Plate Glass Co. (Banc), 126 Mo. 65; Porter v. Railroad, 71 Mo. 78 and 79; Epperson v. Postal Tel. Cable Co., 155 Mo. 526; Corby v. Mo. & Kan. Tel. Co., 231 Mo. 436 and 437; Lee v. Railroad, 112 Mo.App. 403; Doyle v. Trust Co., 140 Mo. 18.

OPINION

JOHNSON, J.

--Plaintiff, the servant of defendants, received personal injuries while in the discharge of duties pertaining to his employment and sued to recover the resultant damages on the ground that his injuries were caused by negligence of defendants in failing to exercise reasonable care to furnish him a reasonably safe place in which to work. The answer is a general denial and a plea of contributory negligence. The cause is here on the appeal of defendants from a judgment for $ 5000 recovered by plaintiff in the circuit court.

Defendants, as the receivers of the Sedalia Light & Traction Company, were engaged in the business of manufacturing and selling electricity for lighting and heating purposes in the city of Sedalia. High power currents of electricity were transmitted over pole lines owned and maintained by defendants and at certain places such currents were run into transformers where they were divided into numerous weaker currents, each of which was thence transmitted to its place of consumption. One of these transformers was on a pole at the northwest corner of Second street and Vermont avenue. The pole was thirty feet high and carried four cross arms near the top. The first three from the bottom were attached to the west side of the pole and faced west. The top or "buck" cross arm was attached to the south side of the pole and faced south, which position placed it at right angles to the other three. The first cross arm was nineteen feet eight inches above the sidewalk and carried two electric light wires on the pins next the pole. The second was two feet four inches higher and had four vacant pins. It carried the transformer which was cylindrical in shape, weighed 150 pounds and was on the west side of the pole. The third cross was six feet higher and carried two high power wires connected with the transformer by "jumper" wires which were close to the pole and ran down its east side into the transformer. The buck arm was eight or ten inches above the last mentioned cross arm. A "secondary" light wire ran up the pole into the transformer from the bottom cross arm where it was attached to the pole pin.

Defendants had found it necessary to replace the transformer on this pole with one of larger capacity and their superintendent, on the day of the injury, ordered the foreman to "take the boys down and change that transformer . . . if you have time to get through with it," which meant that the change should be made without interfering with the service to consumers. To complete the work that day required haste and the foreman, in ordering the men to do the work, told them "we have got to hurry so as not to interrupt the service of consumers."

Plaintiff was one of the workmen the foreman took with him. He was an experienced lineman and it was his task to climb to the top of the pole and do the work there necessary to effect the substitution. The new transformer was thirty-four inches long, in the form of a cylinder, eighteen inches in diameter at the top and weighed 250 pounds. The pole leaned slightly towards the east and plaintiff climbed upon its west side. He carried a block and falls which, with its ropes, weighed fifty pounds, and only such tools as he needed in making the change. He wore spurs and a safety belt. The insulation of some of the wires strung on the pole was in a defective condition and he was compelled to avoid contact with such wires. He climbed to the top of the old transformer and stood on it while he lashed the hoisting apparatus to the third cross arm. He testified that in going up the pole he carefully looked at the cross arms and observed no sign of decay or weakness in them. He noticed that the buck arm was new and evidently had been recently put on. Further he noticed that the insulation of the jumper wires was defective and that he would have to be careful to avoid them. He descended over the transformer to a point which brought his shoulders on a level with its top. His weight rested on his spurs and he put his safety belt around the pole. He had already attached the hoisting rope to a ring in the top of the transformer and on assuming the position just described called to the foreman to "let her ride" which meant that the men below should raise and unhook the transformer from the cross arm and lower it to the ground. This was done and the new transformer which, as stated, was larger and heavier than the old, was hoisted and hooked onto the cross arm in the place of the old. After completing this task plaintiff started to climb to the top of the transformer to unloose the block and falls from the third cross arm. He concluded that the transformer was too large an obstacle to climb over and after detaching the safety belt from the pole proceeded to climb around the north side of the transformer. He leaned over towards the north and with his left hand seized the second cross arm (the one to which the transformer was attached), at a point about in the middle of the arm. The wood looked sound but had rotted in the interior and the shell crumbled under his grasp and he started to fall. To save himself he grasped the pole pin with his right hand but it broke off under the surface of the cross arm. Still falling he clutched the end pin with his left hand but it split the end of the rotten cross arm and pulled out. He fell to the sidewalk sustaining the injuries which are the subject of this controversy.

One of the most important conflicts at the trial was over the subject of the method defendants had adopted and applied for the performance of the elementary duty they owed their linemen of exercising reasonable care to furnish them a reasonably safe place in which to work. The substance of the evidence of defendants is that cross arms and pins were not intended to be used by linemen for purposes of climbing and support and that when linemen were sent out to work on poles they were charged with the duty of making their own inspection. The evidence of plaintiff is to the contrary and since the jury resolved all controverted issues of fact in favor of plaintiff and the principal questions we are called upon to determine arise from the contention of defendants that plaintiff failed to make a case to go to the jury, we shall confine our consideration of the evidence to its phase most favorable to the pleaded cause of action.

The method of work followed by defendants thus is described in the...