Duzer v. Commonwealth Telephone Co. ( 1912 )

Opinion by

Mr. Justice Potter,

In this action of trespass, the plaintiff, an employee of the defendant company, sought to recover damages for injuries resulting from the alleged negligence of defendant in failing to provide the plaintiff with a reasonably safe harness or appliance to be used in climbing telephone poles. Upon the trial in the court below, at the close of the testimony offered in behalf of the plaintiff, judgment of compulsory nonsuit was entered, and from the refusal to take it off this appeal has been taken. There was evidence tending to show that plaintiff, who was without experience in this line of work, was employed by the defendant to aid in the construction of its telephone lines. There was testimony that the company furnished the tools, belts and appliances which were required for the work. In climbing poles an appliance was used which consisted of a harness fitted to the body of the climber, to which was attached straps which passed around the pole and were fastened at the ends to the harness by means of metallic snaps, which when in proper condition were kept closed by springs. These snaps were an important factor in the safety of the climber. At the time of the accident, the plaintiff was working upon a pole at some distance from the ground, when, owing to the movement of his body, or for some other reason, one of the snaps which it is alleged was out of order, came open, the encircling strap dropped away from the pole, and the plaintiff fell to the ground, receiving severe injuries. Such an accident would not have happened had the snaps been in proper working condition.

From the opinion of the trial judge, refusing the motion to take off the nonsuit, it appears that he regarded the harness, including the safety snaps, as being a simple contrivance which was very liable to get out of order, and he apparently considered that the entire responsibility for its inspection was cast upon the employee. He regarded the failure of the plaintiff to detect the defect in the appliance as constituting contributory negligence, which would in itself prevent the recovery of damages. We are not able to agree with the conclusion thus reached and acted upon by the trial judge. It appears from the evidence that the plaintiff had very little experience with this appliance before the accident. He had used it for a few hours only. The defect in the snaps does not appear to have been something which was apparent at a glance. Manual examination and testing of the springs was necessary. The trouble seems to have been in the springs which were weakened, and did not hold the tongue of the snap firmly in position when closed, so that while in so far as appearance went, it might be safe, the weakness in the spring was liable to permit the tongue of the snap to fall down upon slight pressure or an accidental touch. The testimony showed that this weakness in the springs had existed for some time, but no notice of any such condition was given to the plaintiff, when he was asked by the foreman to make use of the harness. Yet his safety evidently depended upon the integrity of the appliance in question.

Under these circumstances, we do not feel that the trial judge was justified in saying as a matter of law that the failure of plaintiff to observe this rather minute, yet most serious, defect in the appliance which was furnished to him by his employer, was such negligence as would defeat his right to recover. The simplicity of the device was not in itself enough to exempt the employer from all responsibility under the circumstances; and in judging of the conduct of the plaintiff, his lack of experience and the slight opportunity which he had under the circumstances for knowing and detecting any defect in the appliance, are factors which should have been taken into account. We cannot say that the only inference which could properly be drawn from these circumstances would be that of contributory negligence upon the part of the plaintiff. Where more than one inference may fairly be drawn from the evidence, the case is for the jury.

The judgment is reversed with a procedendo.