McDonald v. Postal Telegraph Co.

The plaintiff, in the employ of the defendant as a lineman, fell from a pole on which he was at work, by reason of the breaking of a cross-arm. His action is based upon the negligence of the defendant in providing a defective arm through which a knot ran from one side to the other, obvious to proper inspection, which so weakened the arm as to make it unfit for use. The defendant's petition for a new trial is based upon the grounds of verdict against the evidence, erroneous rulings, and excessive damages.

The claim that the verdict is against the evidence covers both the negligence of the defendant and contributory negligence of the plaintiff.

We cannot set aside the verdict upon either of these grounds. It is admitted that there was a not in the arm, but there was a controversy as to its extent, the defendant claiming that the break was not caused by the knot, but by a weather-crack which could not be seen until after the break. Upon this question the jury was warranted in finding from the evidence that the knot extended through the arm all the way on one side and part of the way on the other. According to the testimony of experts, including those of the defendant, if such a defect existed it would be a bad arm and it would be the duty of the inspector to reject it. It also appeared in testimony that the arms had been painted before delivery to the defendant, but that such a knot would be discoverable on inspection, notwithstanding the paint. These were pure questions of fact, and as the verdict was not clearly wrong we cannot disturb it.

As to the contributory negligence of the plaintiff, the claim of the defendant is that, if the defect was obvious, the plaintiff should have seen it and was negligent in trusting himself to an arm obviously defective. This claim is in accordance with the general rule. Disano v. New England Co.,20 R.I. 452; Larich v. Moies, 18 R.I. 513; Kelley v.Silver Spring Co., 12 R.I. 112. But such a rule is not controlling in this case. A defect which may be discovered by an inspector, whose duty it is to look for it, may easily and without negligence escape the notice of one who is engaged in some other duty. The application of the rule depends upon the circumstances of the case. Jones v. N.Y., N.H. H.R.R.,20 R.I. 210; Burns v. Same, 20 R.I. 789; Whipple v. Same, 19 R.I. 587; Crandall v. Same, 19 R.I. 594. In this case the plaintiff had the right to assume that the arm had been properly inspected. It had been up only about two years — not long enough to lead him to look for decay. The painting had obscured the knot to some extent, at least, and it was partially covered on the top by the insulator, so that a climber would not be likely to see it upon a casual inspection. It is also claimed that the plaintiff was negligent in throwing his leg over the arm between the first and second pins; but there was testimony to show that this was necessary in order to reach the wire to be tied. Under such testimony it was competent for the jury to find that there was no contributory negligence. Much stress was laid by the defendant upon the fact that the weather-crack was not discernible, and that the break was through this check. We should be quite ready to hold that a defendant would not be liable for such a defect, but it appears that the break was through the knot-hole also. The jury must have based their verdict upon this fact, because no reference to the weather-crack is made in the special findings, and the jury found that the arm was not a proper one when it was put up, which was before the weather-crack had developed.

We do not separately consider the refusals to nonsuit and to direct a verdict, because they are involved in the sufficiency of the evidence and the correctness of rulings otherwise raised.

The principal objection to the rulings is that the court instructed the jury that the master is to furnish a reasonably safe cross-arm, which, the defendant says, is equivalent to saying that a master insures the safety of the appliance.

This court has already stated, and the trial judge also said, that a master is not an insurer against accidents, and that his duty is to furnish a reasonably safe place for work and reasonably safe appliances. McCann v. Atlantic Mills,20 R.I. 566; Healey v. N.Y., N.H. H.R.R., 20 R.I. 136. The defendant insisted that the ruling should be that the defendant must use reasonable care to furnish safe appliances. This is, in fact, what the trial judge ruled. The difference is one of words rather than substance. The statement to the jury was that neglect to perform a legal duty is "The failure to do what a reasonable and prudent person would ordinarily have done under the same circumstances."

Again: "The defendant corporation was bound to see to it, as a reasonable and prudent person would be bound to see to it, . . . if you find that the cross-arm in question was defective, that its defect was of such a nature that a reasonable and prudent person could have discovered the defect and could have rejected it."

Again: "If you find there was a defect in the cross-arm, and if you find that it was easy to be seen by an observer, then it was the duty of the plaintiff, in the exercise of ordinary care, to have made the necessary inspection."

The rule which the defendant maintains could hardly have been stated more explicitly.

Reasonable care to provide safe things is involved in the qualification that they shall be "reasonably safe;" but the judge did not leave it in that way, for he went on to explain that reasonable care in this case meant proper inspection. We have considered this question as it was argued and presented in defendant's brief, but the requests to charge which were excepted to were somewhat different. The first was, in substance, that if the company furnished a sufficient number of arms from which workmen could select it was not liable. Second. That if it was a visible defect the workman who selected the arm was negligent, for which the company was not responsible. Third. If the company employed competent workmen to inspect the arms it was not liable.

All of these requests were rightly refused, in accordance with decisions of this court as well as with prevailing law. InMulvey v. R.I. Locomotive Works, 14 R.I. 204, Durfee, C.J., said: "It is the duty of a master who furnishes machinery for his servants to operate or work about, to see that it is reasonably safe. He cannot divest himself of this duty by devolving it on others, and if he does devolve it on others they will simply occupy his place and he will remain as responsible for their negligence as if he were personally guilty of it himself." The same rule is stated in Brodeur v. ValleyFalls Co., 16 R.I. 448; Hanna v. Granger, 18 R.I. 507; Laporte v.Cook, 21 R.I. 158.

In this case the defendant's testimony shows that the company had assumed the duty of inspection before furnishing the cross-arms, and the plaintiff had the right to assume that they were suitable for use, there being nothing to show the contrary or to warn him that he must make his own inspection. The cases relied on by the defendant are of the latter kind and essentially different from the case at bar.

In Flood v. Western Union, 131 N.Y. 603, the plaintiff, a lineman, fell by the breaking of a cross-arm which had been in use six years. The opinion of the court shows that there was no negligence in furnishing and putting up the arm originally, or any defect therein discernible by an ordinary inspector. InMcIsaac v. Northampton Co., 172 Mass. 89, a lineman was sent to change wires from an old pole belonging to another company, which proved to be rotten below the surface of the ground. The pole had been in use eight or nine years, and showed no sign of weakness above ground. In Cumberland v. Loomis, 87 Tenn. 504, a charge that the plaintiff could assume that a pole which he had to climb was safe was held to be erroneous because it decided that he was not an inspector, which was a disputed question of fact. InGreene v. Western Union, 72 Fed. Rep. 250, the plaintiff was one of a crew that had put up a gin-pole, which fell because it had not been properly guyed. It was a part of his own work. In Dixonv. Western Union, 68 Fed. Rep. 630, the plaintiff fell from a rotten pole belonging to another company. In these cases the companies were not held liable, because there had been no negligence on their part and the injury came from the ordinary risks of the employment. In present case, as we have seen, there was an original negligence of inspection.

The exceptions as to the admission of testimony are unimportant, in view of the findings of fact by the jury, and could not affect the question of ultimate liability. It is therefore needless to consider them in detail.

As to the question of damages there was much testimony, from which it was argued on one side that injury was great and permanent, and on the other that it was small and brief. Considering only the fact that the plaintiff worked for the defendant for eight months after the accident, and then left only because his pay was cut down, it would seem that the injury could not have been serious. But the testimony, by physicians, of nervous shock, was doubtless believed by the jury. It was a question of fact, and, an two juries have fixed the same sum, we cannot say that it is excessive.

Petition for new trial denied, and case remitted.

[1] See Dwyer v. Shaw, decided June 30, 1893, and to be reported at end of Volume 22.