Southern Bell Tel. & Tel. Co. v. Shamos
| Decision Date | 04 February 1913 |
| Docket Number | 4,513. |
| Parties | SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. SHAMOS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An employé was engaged in clipping cables for a telephone company, and in so doing was seated in a swing attached by means of hooks and straps to a telephone wire. In order to move along the wire, the usual and ordinary way was to catch hold of the cable with his hands, lift his weight from the seat, and slide the swing along the wire. Suspended to the poles below the swing was a wire of an electric light company, carrying a highly charged current of electricity. The employé knew of the presence of this wire, knew it was charged with electricity, and knew, or could by the exercise of ordinary care, have known, that the insulation had worn off, and that if he came in contact with the wire he would be injured. He clipped cables in the manner above indicated for more than a day; but, as he moved along, the distance between the cable and the electric light wire became gradually shortened, so much so that, when the employé endeavored to slide the swing along in the usual way, his foot was extended and touched the wire of the electric light company and he was injured. It was no part of the employé's duty to inspect the wires. Held, in a suit to recover against the telephone company for the injuries thus sustained, it was a question for the jury whether the employé was lacking in ordinary care in failing to discover that the distance between the cable and the wire had become so gradually shortened as to make unsafe the place at which he had been set to work by the master. This is especially true where the master assured the servant when he went to work that the place was safe.
The verdict was not legally excessive.
Every material averment of a petition must be either admitted or denied, unless the defendant is unable, from want of information, to do either. A mere statement, in an answer to a paragraph of a petition, that the defendant "neither admits nor denies" such paragraph, without giving the reason for failing so to do, is no answer, and must be treated as an admission.
In the absence of a request for a more specific instruction, the following charge was not erroneous because the trial judge failed to instruct the jury specifically to take into account the possibility of the plaintiff's earning capacity being increased: "If, under the evidence, the expectancy would be more or less than that of the average man, or the earning capacity could increase or decrease, the cash or present value would vary accordingly."
In the trial of an action for personal injuries sustained as a result of an unsafe place in which an injured servant was put to work, it was not error to charge: "The master, under the law, is under the special duty to inspect and investigate the risks to which the servant is exposed."
While the interest of a witness may always be considered, the mere failure of the judge to enumerate the fact of such interest as one of the things which may be considered by the jury in passing upon the credibility of the witnesses will not ordinarily demand a new trial.
The following charge was not so prejudicial as to require a new trial: "You are not concerned in any way with the 'result' of your verdict, so long as you know and believe, as upright jurors, that verdict speaks the truth of the case, based upon the opinion you entertain of the evidence adduced upon the trial, under the rules of law as given you in charge by the court."
(Additional Syllabus by Editorial Staff.)
A telephone company, in putting a man at work seated in a swing suspended from a cable so near a highly charged electric light wire as to be dangerous to him, is negligent in failing to furnish a safe place to work, since the duty to furnish a safe place is one of the master's absolute duties, and the master is liable, if it permits another to render the place unsafe, to the same extent as if it itself had put the place in an unsafe condition.
A servant, injured by reason of the dangerous condition of his place of work, cannot recover if he had equal means with the master of discovering the danger, or if he failed to exercise ordinary care after it became apparent.
If a servant does not know, and cannot by ordinary care ascertain that a place is dangerous, he may rely on the assurance of the master; but it is otherwise if the danger be obvious to an ordinarily prudent man of the servant's capacity and experience.
A telephone company waived a rule requiring its employés to wear rubber gloves and rubber coats by knowingly permitting work to be done without them.
In an action for personal injuries, proof that plaintiff had some earning capacity at the time of his injury justifies instructions on the use of mortality tables, though the amount he was then earning is not shown.
Error from City Court of Macon; Robt. Hodges, Judge.
Action by W. E. Shamos, by next friend, against the Southern Bell Telephone & Telegraph Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Hardeman, Jones, Park & Johnston, of Macon, for plaintiff in error.
Napier & Maynard, of Macon, for defendant in error.
The plaintiff, an employé of the defendant, was directed by its general manager to "clip cables" at a point on the company's telephone line in the city of Macon. His work was that of a regular lineman, but he was an employé of inferior grade to a lineman, and receiving less pay. In order to perform the work it was necessary for him to use a swinging device, consisting of a safety belt, with two hooks on the end, which were fastened over the wire, and a board seat at the bottom of the straps, upon which the workman sat while clipping the cable. When directed to do the work, the plaintiff asked the manager for a "helper" to pull the wires down with a rope, which was the usual way of protecting a workman engaged in clipping cable. The general manager stated that he had no helper to send, that there was nothing to hurt the plaintiff, and that the work was perfectly safe. Thereupon he began the work. He slid along the wire by catching hold of the wire, lifting his weight from the seat of the swing, and pulling himself along with his hands, which was the usual and ordinary way of moving along the wire.
Suspended along the poles of the telephone company, and from five to seven inches below his feet, where he was put to work, was a wire of an electric light company. This wire carried a highly charged current of electricity, and the insulation upon the wire was badly worn, so much so that it hung down in shreds, which could be easily seen from the top of a house some distance above the wire. The plaintiff was not warned by the defendant that the wire carried such a highly charged current, but he did know that if he touched the wire he would get a shock. When he went to work for the defendant, he acknowledged receipt of a written notice to inspect all poles before using them, that it was extrahazardous to work around wires carrying a high current of electricity, and that employés, when doing such work, should use rubber gloves and rubber coats. Many employés, with the knowledge of the company, did not use rubber gloves and coats, and the defendant knew that the plaintiff did not have any. The swing which the plaintiff was using was strapped as closely to the wires as it could be gotten when used for sliding along so as to clip the cables. The plaintiff was not a lineman, and it was not his duty to inspect the wires. He had been clipping the cables, in the manner above indicated, for more than a day prior to his injury; but, the farther he moved along the wire toward his destination, the closer the cable got to the electric light wire. At the time of the injury the light wire was about 5 inches beneath his feet. He took hold of the cable with his hands, and pressed his weight down on it to allow him to slide the swing along the wire, and in so doing one of his feet came in contact with the electric wire. He was severely burned and shocked, and fell some 30 or 40 feet to the pavement below. He sued for damages, and the jury found a verdict in his favor for $3,500, and the defendant's motion for new trial was overruled.
1. It is contended in behalf of the defendant that it was guilty of no negligence, that the plaintiff assumed the risk of injury, and that, even if the defendant was negligent, the plaintiff could, by the exercise of ordinary care, have avoided the consequences of such negligence, and that the plaintiff's injury was due to his own carelessness in unnecessarily extending his foot far enough below the swing to come in contact with the wire. The facts as set forth above are stated most favorably for the plaintiff, because they must be so considered by the reviewing court after a verdict in his favor.
Unquestionably the defendant was negligent in failing to furnish the plaintiff a safe place in which to work. This was one of the absolute duties of the master, and it was bound to have the place inspected, to see that it was safe, and to put it in a safe condition if it was not so. Trammell v. Columbus Railroad Co., 9 Ga.App. 98, 70 S.E. 892. The poles were the property of the telephone company. If it permitted another to so use these poles as to render unsafe a place wherein it set one of its servants to work, it was liable to the same extent as if it itself had, through its own act of commission or omission, put the place in an unsafe condition, or allowed it to become so. Acquiescence in such negligent conduct of another is the same in law as the doing of the negligent act.
One injured, however, by reason of the dangerous condition of the place in which he is...
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