Southern Bell Tel. & Tel. Co v. Starnes

• Court: Georgia Supreme Court
• Writing for the Court: COBB
• Citation: Southern Bell Tel. & Tel. Co v. Starnes, 122 Ga. 602, 50 S.E. 343 (Ga. 1905)
• Decision Date: 25 March 1905
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. STARNES.

122 Ga. 602

50 S.E. 343

SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

v.STARNES.

Supreme Court of Georgia.

March 25, 1905.

INJURY TO EMPLOYE—DANGEROUS APPLIANCES —PLEADING.

The plaintiff having been injured by falling from the cross-arm of a telephone pole which he climbed to repair the wires, and it appearing from his petition that the defect in the cross-arm, if any existed, was concealed by paint, and that he, after "carefully examining and testing" the cross-arm, could not discover the defect before putting his weight on the cross-arm, the petition set forth no cause of action, notwithstanding it was alleged that the defendant was notified of the defective condition of the poles and cross-arms in the locality where the plaintiff was hurt, and that it failed to warn the plaintiff of the defect, there being no allegation that the defendant actually knew of the particular defect which was claimed to have caused the injury.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 832.]

(Syllabus by the Court.)

Error from Superior Court, Washington County; A. F. Daley, Judge.

Action by T. B. Staines against the Southern Bell Telephone & Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed.

Starnes sued the Telephone Company for damages, alleging, in substance, as follows: The plaintiff was employed by the defendant as a telephone lineman, his duties being to assist in the construction and repairing of lines, erecting poles, stringing wires, etc. He was ordered by the defendant's manager to replace certain wires upon the cross-arm of one of its telephone poles, which wires had been misplaced by the burning of certain telephone poles at that point. This work being in the regular course of his duties, and not being obviously hazardous and dangerous, the plaintiff proceeded to climb the pole for the purpose of replacing the wires. As soon as he reached the cross-arm he found that the wires that needed replacing were near the end of the arm, and that, in order to untangle and replace the wires, it would be necessary to place his weight on the cross-arm, "and, after case-fully examining and testing same, and finding no apparent defects, the said cross-arm being painted and apparently sound, peti tioner placed his weight thereon, and without any fault whatever on part of petitioner the said cross-arm broke, " and petitioner fell, sustaining severe injuries. The cross-arm was rotten, "the paint thereon concealing said defect from petitioner, " and the cross-arm was not of sufficient strength, and was unfit for the purpose used and intended; all of which was known or should have been known to the defendant. The defendant, unknown to the plaintiff, had been repeatedly notified and warned of the defective condition of the poles and cross-arms of the company in the town where the injury occurred, before the happening of the injury, and had failed and refused to repair the defects, or to notify the plaintiff thereof. The plaintiff used all ordinary care and caution, and could not have untangled and replaced the wires without putting himself in the position from which he fell, and the injury was the result of the willful and gross negligence of the defendant. By amendment it was alleged: The plaintiff had been in the employment of the defendant about two months before the injury, and the defendant had owned the wires, poles, etc., about six months, and had maintained them in their defective condition for that time, and the plaintiff had nothing to do with the erection or repairing of the cross-arms or poles during that time. During the time of his employment the plaintiff had nothing to do with the erection or repairing of the poles, cross-arms, etc., except as ordered by the defendant's superintendent, and therefore the plaintiff did not have as good an...