Western Union Tel. Co. v. Burgess

• Decision Date: 05 March 1901
• Docket Number: 835.
• Citation: 108 F. 26
• Parties: WESTERN UNION TEL. CO. v. BURGESS.
• Court: U.S. Court of Appeals — Sixth Circuit

108 F. 26

WESTERN UNION TEL. CO. v. BURGESS.

No. 835.

United States Court of Appeals, Sixth Circuit.

March 5, 1901

Henry &amp Robert Newbegin, for plaintiff in error.

Harvey Scribner and W. H. Handy, for defendant in error.

This action was brought to recover damages for a personal injury sustained by the defendant in error while in the employ of the plaintiff in error as a lineman. Speaking generally, the work of a lineman consisted in stringing wires, putting up and taking down poles, digging holes, and the like. One of the methods of taking down and removing a telegraph pole was for a lineman to climb the pole, and saw it off in sections beginning about four or five feet from the top, until the pole was cut sufficiently low to make it practicable to pull down the remainder of the pole and remove it. The defendant at the time of the injury had, pursuant to directions from his foreman, Shadd, climbed the pole, situated on a street in the city of Cleveland, Ohio, up to a distance of about 40 feet from the ground and about 5 feet from the top of the pole, the pole being about 7 inches in diameter, and was engaged in sawing off a section of the pole, supporting himself by placing his left leg around the pole, or 'hugging' it with the left leg, and placing the climbing spur on the foot of the right leg in the pole. He was sawing with one hand and holding with the other just above the point at which the saw blade was cutting through the pole, and when the pole was sawed about three-fourths of the way through the top section broke off and fell, striking the defendant in error, in consequence of which he fell upon the sidewalk, suffering severe injuries. The defendant in error himself describes what occurred as follows: 'I commenced sawing until, I think, the pole-- as near as I can remember, I think the pole was about half off, and I felt it coming. It did not crack, or nothing more. It commenced coming towards me. I was up there on the pole, with my right hand over here (indicating), and my left hand about three inches above. I felt it coming, and I threw my hand down to catch on the lower piece of the pole. Just got a small hold there, when that other piece struck me. I grabbed the piece that had broken off, and fell backwards. It was over me until I turned over. I can remember turning over. I had hold of the pole something like that (indicating), and I shoved the pole away from me. That is as far as I can remember. ' The defendant's left leg was so broken and crushed by the fall that amputation was rendered necessary, and other serious injuries were suffered. There was evidence in the case tending to show that work or experience as a lineman during a period of 6 to 12 months was necessary to reasonably qualify such lineman for the dangerous work of climbing and sawing down poles by sections, like the work in which defendant in error was engaged at the time of the injury. There was also evidence tending to show that the pole on which he was at work had been standing in position and in use for about 18 years, and that the life of a pole like it, or the time during which it would remain sound and safe, was from 12 to 20 years. It was what is called a white cedar pole. There was no system of inspection of the poles on the particular line of which this pole was a part, and the record fails to disclose any rule promulgated or custom adopted by which it was the duty of defendant in error, or any other particular person, to make inspection; nor is any contract provision, direction, or instruction in that regard shown.

During the early part of the year 1896 the defendant in error had worked about 60 days, at irregular intervals, in the construction of a telegraph line on a railroad called the 'Lima Northern,' and during about 6 or 8 days of that time had done the work of climbing poles and stringing or tying wires, or assisted in such work; but the remainder of the time was engaged in what is called 'ground work,' such as carrying poles, setting them in the ground, and other work, which did not require climbing the poles for any purpose. He commenced work for the plaintiff in error on the 1st day of August, 1896, and his injury was sustained on the 12th day of the same month. Such work as he did while in the service of plaintiff in error, before the injury, consisted in ground work, until in the afternoon of the 11th day of August. What took place then and on the morning of the accident was stated by the defendant in error, and may be given just as found in the record, as follows: Q. Let me call your attention to the evening of the 11th of August. Did you have an interview with the foreman of that company on that evening? A. While we were at work? Q. Yes. A. Yes, sir. Q. Under whom were you working at that time? A. W. A. Shadd. Q. What was his position? A. Foreman. Q. Was there any one else who had authority over you besides Shadd? A. Yes, sir. Q. Who was that? A. Mr. Miles. Q. What was his position? A. Assistant foreman. Q. What did these foremen usually do while you were working with them? What orders did they give? What did they do? A. They told us what we were to do, and we did that usually. Q. Who engaged you to work for the Western Union Telegraph Company? A. Mr. Miles. Q. Well, now, you can go on and state what Shadd told you that evening of the 11th of August. A. We were working in the city. I do not know what street we were on. He said to the gang, 'Boys, we will go over and take down the rest of these poles.' He named the street, and we started over. On the road over-- We did not have any ax. I asked Mr. Shadd how we were going to take them down. He said, 'We will cut them from the top.' We went on over, and come to the first pole. He told Jim Lang,-- I think his name was Jim,-- 'You and Burgess take this pole.' Q. That was the evening before? A. That was the afternoon of the 11th. I said, 'Mr. Shadd, I never did any of this kind of work, sawing down poles.' He said 'You can take the poles off of the rope for Jim.' And Jim started up the pole. On the way-- it was a step pole-- he caught his saw on the step, and broke it. Q. What do you mean by a step pole? A. That pole has iron steps driven in the side of it, to make steps-- to make a ladder. Q. Climbers? A. Yes, sir. He broke his saw when he went on it, then he came down, and told me to saw until he went down to the-- Q. Who told you to go up the pole? A. Jim Lang. Q. A man who was working with you? A. Yes, sir. Mr. Scribner: This is to show what experience he had. This was not the time he was hurt. This was the evening before he was hurt. I want to show what experience he had. The Court: I do not hear any objection. Mr. Newbegin: I object to this line of testimony. Mr. scribner: I want to show simply that this was all the experience he had. Q. Did you ever saw a pole down before that? A. I sawed some on a pole. I did not take any pieces down. Q. You may state to the court what occurred the next day. A. Well, the next morning we got ready to go to work, and Shadd said to Mr. Henderson and me, 'You will go over on that terminal pole, and change the iron.' Shadd had put it on the day before, and put it on wrong. He said, 'You will go over and change that, and come over where we are working.' We did so. I should judge it was about half-past ten in the morning when I got there,-- got over where they were at work. The gang was working on that street. I think it is St. Clair Street. They were taking down wires and taking off cross-arms. We come up to where they were. Shadd says to Mr. Henderson, he says, 'Red, you and Burgess go to sawing poles,' I asked him if I was to take the poles off the ropes for Mr. Henderson. He said, 'No, you take this pole, and Red will take the other one.' Q. What did you do then? A. I picked up a handline and handsaw that was laying on the sidewalk and proceeded to climb the pole. Q. At the time you started up the pole where was Mr. Shadd? A. When he had told me to take this pole, he had started uptown. Q. Where was Mr. Miles at that time? A. Mr. Miles was, I should judge, about 60 feet out in the street. Q. Did he see you go up the pole? A. Yes, sir. Q. Go ahead, and state what you did. A. Went up the pole there, tied our handline on the pole above where I intended to saw it. There was a bracket there. I fastened the end of the rope on the bracket. I started my sawing on the pole right over the bracket. I put the rope over the bracket to keep it out of the way of the saw. * * * Q. You may state what knowledge you had, if any, in regard to the condition of that pole, as to its being rotten or sound. A. None at all. Q. You may state what you know, or what knowledge you had, as to the danger of sawing off a pole. (Objected to.) A. None at all. I had never seen any of that kind of work done until the day before. Never heard of it. (Exception taken to both the question and form of answer for reasons heretofore given.) Q. You may state what directions were given to you by Mr. Shadd, or Mr. Miles, or any one, as to how this work should be done. A. None at all. Q. You may state whether Mr. Shadd or Mr. Miles ever informed you that the pole was rotten, or what the dangers were in doing the work. (Question objected to by defendant. Objection overruled. Defendant excepts on ground that he took the risk of the work upon himself.) A. Nothing. Q. You may state what instructions, if any, Mr. Shadd, or Mr. Miles, or any one gave you as to the manner in which you should do that work. A. They had never given me any. Q. You may state whether or not they directed you to make any tests of the pole to ascertain its condition. (Question objected to. Objection sustained.) The Court: Ask him what directions were give him. Q. You may state what, if any, directions were given to you in regard to...