Storm v. New York Tel. Co.
| Decision Date | 03 March 1936 |
| Citation | 270 N.Y. 103,200 N.E. 659 |
| Parties | STORM v. NEW YORK TELEPHONE CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by George S. Storm, as administrator of the goods, chattels, and credits of Thomas S. Storm, deceased, against the New York Telephone Company. From a judgment of the Appellate Division (243 App.Div. 581, 276 N.Y.S. 191) affirming a judgment of the Trial Term for plaintiff, defendant appeals by permission.
Reversed and complaint dismissed.
Appeal from Supreme Court, Appellate Division, Second Department.
Irving W. Young, Jr., N. H. Egleston, E. F. Snydstrup, H. N. Wells, and Charles T. Russell, all of New York City, for appellant.
Thomas J. O'Neill and L. Daniel Danziger, both of White Plains, for respondent.
There is no dispute concerning the material facts in this statutory death action.
The plaintiff's intestate died as a result of injuries received when a telephone pole on which he was working fell. At the time of the accident the deceased, Thomas S. Storm, was in the employ of the Westchester Lighting Company and was engaged in removing from the pole certain cross-arms and braces owned by his employer, the lighting company. The pole was owned by the defendant, the New York Telephone Company, and was one of several situated on the southerly side of Westchester avenue in or near the village of Port Chester in Westchester county. The poles were used by the defendant to carry its own wires, but it also leased to the WestchesterLighting Company the right to string certain of its wires on the poles and the lighting company's employees had a right to be upon the poles.
The defendant inspected the poles along the line and discovered that some of the poles, including the one in question, were in a defective condition as a result of the existence of dry rot in the butts of the poles. The poles were replaced by the defendant in 1928 and it transferred its attachments from the old pole line to the new pole line, with the exception of one cable, together with its messenger strand or support wire. Under the rule and practice existing between the companies each removed its own wires and attachments from the poles. In December, 1928, the telephone company notified the lighting company in writing to remove its attachments from the old poles. The lighting company thereupon erected its own line of poles on the opposite side of the street for the purpose of transferring its attachments to these new poles.
Several days prior to the accident the district supervisor of the defendant went to the place where the lighting company's men were working. There he met the assistant district superintendent and the foreman in direct charge of the work of the Westchester Lighting Company and warned them concerning the defective and deteriorated condition of the poles. Frost, the assistant district superintendent of the lighting company, in turn notified the gang foreman of the lighting company ‘to be sure to pike or rope the poles.’ Not content with this, the defendant notified also the district superintendent of the lighting company. The employees who were thus given personal notice at the very place of the work told the district supervisor of the defendant not to worry and that they would assume the care. At the trial they admitted that they were warned and that they understood that the poles were in bad condition and that precautions should be taken in doing the work. The exact language used to the assistant district superintendent and foreman of the lighting company before the attachments were removed was, To which the foreman replied,
Nevertheless no precautionary measures were employed by the lighting company. The customary practice of piking or guying defective poles, a practice which admittedly is very effective in preventing the falling of poles and would have prevented the fall of this pole, was completely disregarded. Several of the linemen of the lighting company climbed the pole in question on the day of and the day before the accident. The lineman on the pole before the deceased cut all the lighting company wires and when the last wire was cut it was noticed that the pole swayed a bit. It is not disputed that if the lighting company had not by its own act cut its wire the pole would have remained safe to climb. The deceased, Storm, was then ordered to climb the pole to remove the cross-arms and other remaining attachments of the lighting company. While he was engaged in doing this work, the pole fell, fatally injuring him.
The jury rendered a verdict in favor of the plaintiff. It made two special findings. It found that notice of the defective condition of the pole was given by the defendant to the Westchester Lighting Company. Nevertheless it also found that the accident was due to the concurring negligence of the defendant and the Westchester Lighting Company. The Appellate Division has unanimously affirmed the judgment rendered on this verdict.
What was the duty owing by the defendant to the deceased lineman, Storm? Was this duty violated? A proper determination of this cause depends upon the answers to these two questions.
The employer of the deceased was a lessee of the right to maintain cross-arms, attachments, and wires on the pole. The relationship, however, was not one where the defendant leased exclusive possession of the pole. Although the lighting company obtained certain fixed rights, the defendant owned and continued to use the pole for its own wires. The defendant, therefore, cannot claim that the duty owed by it to Storm was only that which a landlord normally owes to the employees of its tenants. The defendant, in giving the right to the lighting company to maintain wires on the poles, knew that this would necessitate the presence of linemen on the poles for repair and removal purposes.
Under ordinary circumstances the defendant is required to use reasonable care to provide safe poles. Murphy v. Rochester Telephone Co., ...
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