Terrell v. City of Washington

• Decision Date: 28 February 1912
• Parties: TERRELL v. CITY OF WASHINGTON.
• Court: North Carolina Supreme Court

73 S.E. 888

158 N.C. 281

TERRELL v. CITY OF WASHINGTON.

Supreme Court of North Carolina

February 28, 1912

Appeal from Superior Court, Beaufort County; Cline, Judge.

Action by Joe Terrell against the City of Washington. From a judgment for plaintiff, defendant appeals. Affirmed.

A telephone, telegraph, or electric light company owes a duty to its employés to inspect poles before using them.

City operating an electric light plant held bound to inspect its poles to keep them safe for the use of its employés.

This action was brought to recover damages for injuries alleged to have been caused by the defendant's negligence. Plaintiff was employed by the defendant as a lineman in connection with the operation of its electric lighting plant, and on the day of his injury he was directed by his foreman to climb one of the poles for the purpose of repairing or removing one of the wires attached thereto. In order to perform his work, it was necessary for the defendant to wear spurs or spikes on his feet, and to fasten himself with his belt to the pole, and while he was near the top doing his work, the pole fell to the ground, rebounded, and caused him serious injury, by reason of which he became unconscious and was confined to the hospital under medical treatment for a long time. There was evidence tending to show that the pole was rotten and in very bad condition several inches under the ground, and that it broke three or four inches below the surface of the ground. It was a juniper pole and should have lasted, so as to be used with perfect safety, from 6 to 20 years, and it had been standing only three years when it fell with the plaintiff. There was no rule or custom imposing upon the plaintiff the duty of inspection before ascending the pole and there was nothing in its appearance calculated to put him on notice as to its condition. Above the ground it seemed to be sound and trustworthy, except, as one of the witnesses testifies, at the very top it was rotten, but that part of it which he was required to use was apparently sound and safe. There is ample evidence in the record to show that the pole was not one which should have been selected in the beginning and after ordinary inspection, as sufficiently sound and strong for the uses to which it was intended to be applied. An arc light was suspended from the pole by a wire, the other end of which was attached to another pole on the opposite side of the street. A witness for the plaintiff gave the following description of the pole: "I looked at the pole after he fell. I do not know what became of it. The pole was rotten. It was as rotten as it could be. It broke off between three and four inches under the ground. They did not have any guy wires supporting the pole at that time. They did not have any braces of any sort on it to support it. It had the strain of the light on it. They did not have anything on it to relieve that strain; they only had the pole set back like this. It was leaning from the lamp. The lamp pulled it in the street. If it had not been for the lamp on it, it would have fallen like it started. It was a juniper pole. It was rotten between three and four inches below the ground. It was rotten on the outside." This witness further stated that the pole was not rotten above the ground and that, if an inspection had been made, it would have been taken down, and that no inspection was made to his knowledge. Another witness gave this description of the pole: "The pole was broken off three or four inches under the ground, and was decayed or rotten. You could take little pieces of the wood in your hands and break it up into dust. It had heart that looked sound, but you could take it in your hands and break it up. No one passing there could tell whether the pole was rotten or not, on account of the shell on the outside being hard. You could not tell whether the pole was rotten by the outside, nor unless you pryed into the skin on the outside. You could tell by digging around it. There were no guy wires or braces supporting the pole." The defendant introduced the affidavit of Manly Pearson, made a few days after the pole fell, and therein, among other things, he made this statement: "There was grass grown around the pole at the bottom. Pole seemed to be solid. Showed no appearance of decay above ground, or above grass. Pole broke off about three inches under ground. Where pole broke--that is, place on pole--it was rotten and decayed; you could stick your finger in it; it was spongy, soft, thoroughly decayed; and the only solid spot in pole was a streak in center, the heart, about an inch or so in diameter. There was no support to poles. There were no 'guy' wires on poles. The only wire on pole that fell was wire running from it across street to other pole, from the center of which in the middle of street was suspended an electric 'arc' light weight about 50 pounds. Distance from pole to pole about 40 feet. There was a powerful strain on poles, pulling against each other, and weight of light, and no supports, 'guy' wires, or anything behind poles to resist this pressure. I have been engaged in this kind of work for 18 years. Have worked in South Carolina, Georgia, Alabama, and other states, and most all poles had 'guy' wires on back of poles to support them. These 'guy' wires are necessary to hold poles in position. It is not customary for a lineman to examine poles under the ground when working on them. That is always done by another man." There was evidence to the effect that it was not customary to guy poles like the one in question with no more strain on them than it had, and that the appearance of the pole above the ground did not indicate that it was rotten or unsound, and the city did not have its poles inspected except in a casual or general way; "that is, by passing and looking at them." If the pole had been guyed, it would not have fallen, though there was evidence it was not customary to guy such poles. There was much additional evidence introduced by the parties to sustain their respective contentions, but it is not necessary to an understanding of the case that we should set it out.

The court, among other instructions, charged the jury as follows: "If Terrell was an experienced lineman and there was no regular pole inspector employed by the defendant, the duty of inspecting a pole, as to its safe or dangerous condition, rested as much upon the plaintiff, Terrell, as it did upon the defendant town, and if you find from the evidence that the plaintiff was a person of ordinary information and had experience in the business in which he was engaged, and the town employed no regular or special pole inspector, then he assumed the risk of the breaking of any pole which he was called upon in the line of his duty to climb, not due to any defect in the original setting, and the town owed him no duty to inspect it and inform him of its defects, or to keep it sound, and if you find these to be the facts, you will answer the first issue [as to negligence] 'No.' If you find from the evidence that the pole, at the time it was set in the ground, was sufficiently sound and solid and of sufficient size not to have broken with the plaintiff and was properly erected, as has been explained to you, and you should further find that the plaintiff was an experienced lineman, then the changes by time and exposure produced in the pole was a risk the plaintiff assumed, and you will answer the first issue, 'No.' If you find from the evidence that the pole which broke and fell with the plaintiff was properly set originally and the breaking was not from any negligence in the original setting, but only from failure to keep it inspected and examined, and the plaintiff was an experienced lineman, you will answer the first issue, 'No.' If you find that the plaintiff had the experience, which I have spoken of, as a lineman, and that the pole was properly erected in the first instance, as I have heretofore fully instructed you, then I say that no further duty of its inspection from time to time rested upon the town, and if, under such circumstances, he was hurt by the falling of the pole, it would not be negligence attributable to the defendant, and you would answer this first issue, 'No.' Or if the pole fell because there was some rottenness in it and below the surface of the ground, and it was concealed by reason of any hard shell on the outside of the pole, so that if the ordinary inspection of poles of this kind, either by the defendant or the plaintiff, or both of them, would not have disclosed the defect and the consequent danger in climbing it, as it was, and because of this hidden defect in the pole, when it was subjected to the additional weight of his body and the necessary movements of his arms, and handling the wires, etc., it fell and injured him, his fall would be an accident for which no one would be blamable in law, and in such case you will answer the first issue, 'No."'

The jury rendered a verdict for the plaintiff, and, judgment having been entered thereon, the defendant appealed.

Ward & Grimes and H. C. Carter, Jr., for appellant.

Norwood L. Simmons and Small, MacLean & McMullan, for appellee.

WALKER, J. (after stating the facts as above).

The court, in addition to the instructions we have taken from the charge, told the jury that if the defendant set a pole in the ground which was unsound or unfit for use, or the defectiveness of which it could have ascertained at the time by the exercise of ordinary care, and also failed to brace or guy the pole, if the jury found that persons of ordinary prudence used the guy or brace under such circumstances, they would answer the first issue, as to the defendant's negligence, in the affirmative, provided they also found that the pole...