Southwestern Telephone & Telegraph Co. v. Woughter

• Decision Date: 16 May 1892
• Citation: 19 S.W. 575,56 Ark. 206
• Parties: SOUTHWESTERN TELEPHONE & TELEGRAPH CO. v. WOUGHTER
• Court: Arkansas Supreme Court

19 S.W. 575

56 Ark. 206

SOUTHWESTERN TELEPHONE & TELEGRAPH CO. v. WOUGHTER

Supreme Court of Arkansas

May 16, 1892

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

Reversed and remanded for new trial.

J. W Crawford and S. M. Taylor for appellant.

1. An employee assumes all the risks ordinarily incident to his employment, and not those only which are necessarily incident to the employment. The second instruction was error. Bish Non-Cont. Law, sec. 675 and cases; 135 Mass. 418; 113 id 396; 54 Ark. 389; 46 id. 388. Upon the undisputed facts of this case the risk was one which the law cast upon the plaintiff. He was of full age and experienced, and knew the nature of the risk. 26 L. J. (N. S.) Ex. 221; 61 Ill. 130; 50 Wis. 462; 129 Mass. 268.

2. If the company used proper care in its employment of its foreman, it is not responsible for any negligence of which he may have been guilty in directing plaintiff to ascend the pole. If negligent, it was the negligence of a fellow servant. 135 Mass. 209; 96 Pa.St. 246; 32 Minn. 54.

3. The fourth instruction is objectionable because there was no evidence to show that the master personally assumed the direction of the work. Dunbar was not the master. 11 Ore. 257.

M. A. Austin for appellee.

1. The defect in the pole was latent, and while in such case the employer is not liable for an injury through a latent defect whose existence he did not expect, still if the employer should have known of the defect and failed to learn of it through negligence, he is liable. 44 Cal. 187; 17 Wall. (U.S.), 553; 78 Ala. 494; 30 Mo. 115; 83 N.Y. 7; 4 Oh. St. 566; 33 Am. & Eng. R. Cas. 549; 14 A. & E. Enc. Law, p. 891.

2. A master is required to exercise due care in supplying and maintaining suitable instrumentalities for the performance of the work, and is liable for negligence in not doing it. 44 Ark. 524; 17 Wall. 657; 28 A. & E. R. Cas. 514; 110 Mass. 260.

3. The instructions embodied the law, and there was evidence to sustain the verdict.

W. S. Mc Cain for appellant in reply.

1. The complaint is bad.

2. When an adult servant does an act known to be dangerous, he cannot hold the master liable for having directed him to do it, if injury results from performing the act. Patterson, Ry. Ac. Law, sec. 334; 139 Mass. 580; 28 A. & E. R. Cases, 308: 11 id. 201; 150 Mass. 423.

3. Appellee is barred by his own contributory negligence. 51 Ark. 467; 46 id. 388; 9 S.E. 1082.

OPINION

BATTLE, J.

This was an action by appellee against appellant for personal injuries received by appellee while in the employment of the defendant, At the trial in the circuit court there was evidence adduced tending to prove the following facts:

Appellant was a corporation engaged in operating a telephone line in the city of Pine Bluff in this State. Appellee was twenty-six years of age, and was an experienced lineman. Many of the poles in the line of the appellant were of cypress timber and decayed. E.M. Dunbar, the manager of appellant, employed the appellee to remove the decayed poles. At this time appellee had been in Pine Bluff a short time, was not familiar with cypress timber, and knew not how long the poles had been in the ground. There was nothing connected with some of them, so far as could be seen, that proved them unsafe to climb, they appearing to be sound. Their soundness or unsoundness could only be ascertained by boring or cutting into them, as the outside appeared sound while the inside was decayed.

Appellee commenced work for appellant on the 24th of October, 1889, and continued until the 26th of November following. On the 26th of November, Dunbar, who was then appellant's manager, ordered him to go up a certain pole and loosen the wires attached to the same as quick as he could. The pole was thirty-seven feet high. Appellee had dug around it with a spade several days, before and decided that it was all right. He had previously climbed it several times and was satisfied it was safe. Dunbar had no more reason to believe it was unsafe than he, except that Dunbar knew the age of the pole and appellee did not. At the time Dunbar ordered him to ascend, Dunbar said something about the safety of it, and both of them examined it, and it appeared to be safe. He (appellee) shook it, satisfied himself that it was safe, and then ascended it and loosened the wires as he was ordered to do, and as he did so the pole broke and fell, and threw him to the ground, seriously injuring him. The cutting of the wire caused it to break and fall. If it had been guyed, it would not have fallen, but it was not.

Dunbar was not usually with the workmen, when engaged in removing the poles, to decide which were defective, and when he was absent they did so without him. Appellee was in the habit of relying on his own judgment about the safety of climbing the poles.

Upon this evidence the plaintiff requested, and the court gave to the jury, the following instructions, among others, over the objections of the defendant: "A person engaged in any hazardous employment only assumes such risks as are necessarily incident to such employment, and has the right to presume that his employer will exercise proper care in the conduct of the work, so as to protect him from all danger, except such as is actually and necessarily incident to the employment.

"If the jury believe from the evidence that the superintendent or foreman ordered him to go up the pole, and the plaintiff obeyed the order of the superintendent or foreman in ascending the pole and removing the wires therefrom, and that the danger of ascending and performing this work was not so apparent that a prudent man would refuse to take it under the orders of his superintendent or foreman, and that while he was thus engaged, the accident occurred without any act of negligence on the part of the plaintiff, and occasioned the injury, they will find for the plaintiff.

"The court instructs the jury that where a master personally assumes the direction of work which is being performed by his servant, and in consequence of following the directions of the master the servant is injured, the former is liable when the danger incurred was not fully known to the servant, was not obvious to him from his knowledge, and he had reasonable cause to believe that he could follow the directions in safety, and was in the exercise of due care."

The jury returned a verdict for the plaintiff; and the defendant appealed.

Did the court err in instructing the jury?

When a servant enters into the service of another, he assumes all the ordinary and usual risks and hazards incident to his employment. He is presumed to have these risks in contemplation and to contract in reference thereto when he enters into the employ of the master; and consequently can not recover for injuries resulting to him therefrom. St. L., I. M. & S. Ry. v. Gaines, 46 Ark. 555;L. R., M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333, 346; Wood's Master and Servant (2nd ed.), § 349.

It is the duty of the master to use reasonable care, diligence and caution in providing for the safety of his servant, and in furnishing for their use in his work safe and suitable instrumentalities and appliances in the prosecution thereof and in keeping the same in repair. While he does not insure the safety of his servants, yet he is bound to take heed that he does not, through his own want of care and prudence expose them to unreasonable risks or dangers, either from the character of the tools with which he supplies them, or the place in which he requires them to operate. He is in duty bound not to expose them to danger of which he knows, or has reason to know, they are not aware. Before ordering them to perform any service he should warn them fully of the latent dangers incident thereto, if there be any, of which he knows or in the exercise of proper diligence ought to know; and this duty "extends even to patent dangers when he knows the servant, by reason...