Texarkana Telephone Company v. Pemberton

• Decision Date: 18 May 1908
• Citation: 111 S.W. 257,86 Ark. 329
• Parties: TEXARKANA TELEPHONE COMPANY v. PEMBERTON
• Court: Arkansas Supreme Court

111 S.W. 257

86 Ark. 329

TEXARKANA TELEPHONE COMPANY v. PEMBERTON

Supreme Court of Arkansas

May 18, 1908

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

STATEMENT BY THE COURT.

This is a suit brought by Henry Pemberton to recover for personal injuries caused by reason of the negligence of the Texarkana Telephone Company in failing to repair certain dangerous wires within a reasonable time, as Pemberton was led to believe would be done.

About dark on the 19th day of November, 1906, the plaintiff and John Few, "trouble shooters" for the Texarkana Telephone Company, were sitting in the office of Roy Taylor the wire chief of the company, after their day's work was done. Mrs. De Grazier called up the wire chief from her residence on Beech Street, and reported that there was a wire down in the street beyond her residence, crossed with an electric light wire. Burton, the line order foreman, had gone home, and, owing to the great damage that might result from a telephone wire being down in the street charged with 2,300 volts of electric light current, the wire chief asked the trouble shooters to go out and fix the wire temporarily, so that it would not be dangerous until it could be permanently repaired. Pemberton and Few went out to locate the trouble and found that one of the wires of the Texarkana Telephone Company had "slacked" up against the electric light wire, and the electric light current was passing from its wire to the telephone wire, producing a bright light at the point of contact. Owing to the great danger of trying to cut down in the dark the telephone wire charged with this heavy current, they telephoned the wire chief the condition of the wire, and told him to bring a rope with which to temporarily tie down the wire.

The wire chief immediately carried them a rope. This was thrown over the wire and tied to a nearby fence until it could be fixed the next morning.

The plaintiff adduced testimony tending to show that it was not the duty of the "trouble shooters" to make repairs in the wiring of the telephone system, as they carried only pliers and a screw driver to be used in adjusting telephone instruments or making minor repairs, while the line order foreman had a wagon ladder, rope, wire and all apparatus necessary to make changes in or to repair the wiring. That all defects, either in the wiring or in the telephone, were reported to the wire chief. That he made out tickets showing as near as could be the location where the repairs were needed, and these were delivered to the employees whose duty it was to do that particular work. That the trouble men would go to the place designated on the ticket and make the necessary repairs. Then the wire chief was called, and they would not leave the place until their work was O.K.d by him over the wire. That the next morning, after the wire was tied down as above stated, the wire chief had a great deal of testing to do, and that Pemberton and Few did not get their trouble tickets showing where they should go to work until 9 o'clock, and as soon as the wire chief delivered his tickets to him Pemberton went to his duties as designated by the tickets. That his duty required him to climb a pole to put up his receiver to call up the DeGrazier line, and his left arm got up against a charged wire. That the current went through his body. That he was so badly burned that one arm had to be amputated; and that his feet are permanently injured. That the accident occurred about 11 o'clock in the morning. That he was standing on the messenger wire which was grounded. That this was the customary way of doing that particular kind of work, and that he probably would not have been shocked if he had not been standing on it. The accident occurred by reason of the rope, which had been used to tie the telephone wire the evening before, having become slacked so that the telephone wire again had come in contact with the electric light wire.

The defendant adduced testimony tending to show that Pemberton had passed the place where the wires were in contact on the morning of the accident, but this he denies, and also said that he thought the lines had been fixed as it was the custom to repair them at once when the lines were crossed with the electric light wires on account of the extreme danger caused by the heavy current.

There was a verdict for the plaintiff in the sum of $ 7,000. The court on its own motion reduced the verdict and judgment to $ 6,600, and defendant has appealed.

Affirmed.

R. W. Rogers and Webber & Webber, for appellant.

1. The wire chief was not a vice-principal, and no promise of his bound the company.

2. The plaintiff was guilty of contributory negligence, and can not recover. 1 Labatt on Master and Servant, § 332; 77 Tex 44; 51 Ark. 476; 76 Id. 436, 10 82 Ark. 334. The wire chief was a fellow servant. 58 Ark. 71; 58 Id. 213; 58 Id. 226. The burden was on plaintiff to show that a negligent servant is not his fellow-servant. 2 Labatt, Master & Servant, § 512; 63 Ark. 477. Who are fellow-servants is a question of law where the facts are undisputed. 2 Labatt, Master & Servant, pp. 1352-1424; 77 Ark. 290.

2. The wire chief was "a mere foreman." 77 Ark. 290; 82 Ark. 334; 63 Ark. 477.

3. A servant having an opportunity to know of a risk assumes it. 1 Labatt, Master & Servant, § 401; 47 N.E. 117; 41 Ark. 549; 58 Id. 125.

6. No evidence to support verdict, and it is excessive.

W. H. Arnold and G. G. Pope, for appellee.

1. The wire chief was a vice-principal, and not a fellow-servant. 82 N.E. 202; 67 Ark. 213; 67 A. 1014; 82 Ark. 499; 58 Id. 168; 82 Id. 334; 104 S.W. 535.

2. Doctrine or rule of assumed risk and contributory negligence does not apply, and is not shown in this case. 154 U.S. 190; 81 S.W. 487; 50 Id. 601; 95 Id. 277.

3. A verdict can not be directed for defendant except when the proof is insufficient to support a verdict after the plaintiff's testimony is given its strongest probative force in plaintiff's cause of action. 76 Ark. 520.

4. The evidence fully justifies the verdict.

R. W. Rodgers and Webber & Webber, on motion to reverse and dismiss.

Plaintiff's settlement with the other company releases appellant from all liability. 3 Allen 474; 83 N.W. 1091; 83 Am. Dec. 154; 24 Am. Rep. 504; 93 N.W. 243; 58 L. R. A. 293; 17 A. 338; 15 Am. Dec. 534; 45 Ark. 290; 70 Id. 197; 1 Cyc. 329; 36 Am. Rep. 830; Cooley on Torts, 138; 73 Ark. 14.

W. H. Arnold and G. G. Pope in reply, on motion to dismiss.

No release has ever been executed, only a covenant not to sue the gas company. 83 S.W. 258; Ib. 1098; 70 Ark. 197; 45 Id. 290.

OPINION

HART, J., (after stating the facts.)

The defendant bases its objection to the first instruction given by the court, and to the refusal of the court to give the instructions asked by it, upon the ground that the record discloses no evidence to sustain the position assumed by plaintiff that the wire chief stood in the relation of vice-principal to the defendant. "Electrical companies, in the maintenance of their wires, owe to their employees, as well as to others who may of right, either for pleasure or work, be in the vicinity of such wires, the duty of exercising reasonable care, that is, such care as a reasonably prudent man would exercise under the same circumstances. We have already stated that reasonable care or ordinary care is a degree of care varying with the circumstances of each case, and which, in the case of electrical wires carrying a dangerous current of electricity, requires the exercise of a high degree of care to keep them properly insulated and so suspended as not to endanger lives. And this is the measure of an electrical company's duty to its employees. And it owes the duty not only of properly insulating its wires, but also of exercising reasonable care in their suspension, to prevent contact with other wires. 2 Joyce on Electric Law, § 663.

Corporations can only act through their agents. Therefore it devolved upon the company to have some one to perform its duties to its employees. Its system of conducting its business required all defects, either in the wires or the telephones, to be reported to the wire chief. All the troubles arising from the telephone service were reported to him. His duty was to make tickets of these troubles and give them to the respective employees whose duty it was to make the necessary repairs. He was the directing agent, and the line foreman and the trouble men were under him. It was part of the system of work that they should only make repairs under the direction of the wire chief.

There must be some one acting for the master, else the business would soon be involved in hopeless confusion. The employees would work at cross...