Sias v. Consol. Lighting Co.

• Decision Date: 28 January 1901
• Parties: SIAS v. CONSOLIDATED LIGHTING CO.
• Court: Vermont Supreme Court

50 A. 554

73 Vt. 35

SIAS

v. CONSOLIDATED LIGHTING CO.

Supreme Court of Vermont. Washington.

Jan. 28, 1901.

Exceptions from Washington county court; Tyler, Judge.

Action by Herbert T. Sias against the Consolidated Lighting Company. Judgment for plaintiff, and defendant excepts. Reversed.

Argued before TAFT, C. J., and ROWELL, MUNSON, START, THOMPSON, and WATSON, JJ.

John W. Gordon and Richard A. Hoar, for plaintiff.

Senter & Goddard and H. A. Huse, for defendant.

MUNSON, J. The plaintiff was injured by the fall of an electric light pole, at the top of which he was working. There was nothing in the appearance of the pole as it stood to indicate that it was unsafe. Its decayed condition could easily have been ascertained by digging a few inches below the surface. The plaintiff had been at work for the defendant but a few weeks, and knew nothing of the history of this pole. It was being stripped by direction of the superintendent of the line. The company had decided upon a change of plan which rendered the maintenance of a pole at that point unnecessary, and the plaintiff understood that the pole was to be taken down for that reason. The company had before this decided to reset it that fall because of its unsound condition. This fact was not communicated to the plaintiff nor to the person with whom he was working. The plaintiff had had some previous experience as a lineman, and entered the defendant's service with an understanding that climbing was to be a part of his work. He knew that poles became decayed below the surface after a time, that of poles of the same variety some became decayed sooner than others, and that some test was necessary to ascertain this condition. He made no examination of the pole which caused his injury. The pole in question was one of two which stood on opposite sides of the street supporting the span wire from which the light was suspended. There was one guy wire running from near the top of the pole, in a direction opposite to that of the span wire, to a house, where it was fastened to a stone wall. The plaintiff had just detached and lowered the end of the span wire, and was changing his position to cut the guy wire, when the pole fell. The pole, as set in the ground, if it had been sound, would have held the plaintiff regardless of the wires. The connection of this pole with the other could have been broken as well by going up the other pole and detaching the span wire at that end. There were so many wires attached to that pole that it could not have fallen. Nothing appears as to a safer method of disposing of the guy wire than may be inferred from the facts regarding its fastening as above stated. It appears that some poles in a line will begin to decay by the second year; that two or three years later they should be examined to ascertain their condition; that some will be found to require resetting or extra guying within a short time after; that defendant's line was set in 1888, and that the work of resetting it was commenced in 1894: that, owing to the impracticability of doing this work in the winter, it is the practice to reset in the fall all poles not considered safe to remain until another season; that this was one of the original poles, and that a few months before the accident the superintendent examined it, and found it somewhat decayed, and that later it was designated as one of the poles to be reset that fall, as before stated.

The plaintiff testified that he was employed for the company by one Snow; that he worked with Snow and under his direction, and never received instructions from any one else; that he was working under Snow's immediate direction at the time of the accident, and that Snow told him to climb the pole. The case does not show what plaintiff's counsel claimed from this in argument or by way of request. Defendant's counsel requested an instruction upon the doctrine of fellow servant, but the court made no reference to the subject in its charge, and the defendant now claims that the omission was error. The claim is not sustainable. It cannot be said to appear from the case as presented that the plaintiff stood upon any ground that entitled the defendant to a compliance with its request.

The defendant moved that a verdict be directed in its favor, claiming that the uncontradicted testimony of the plaintiff and all the evidence in the case showed that the defendant was not guilty of negligence, but that there was negligence on the part of the plaintiff, and basing the motion upon grounds which raise the question whether the duty of inspecting the pole rested upon the defendant or the plaintiff. The plaintiff assumes that it was the duty of the defendant to ascertain the condition of the pole before requiring him to climb it, and that when he was put to work upon it without caution he had a right to assume that it was safe. The defendant contends that the inspection of the pole was a part of the plaintiff's duty as a lineman, and that, if he saw fit to climb it without an examination, he took the entire risk. It is impossible to say that it is the duty of the company to furnish the lineman a safe pole upon which to work. The nature of his employment involves the necessity of working upon poles in various stages of decay. He contracts with reference to this...