Opinion
No. 3414.
Decided June 25, 1943.
In an action against a master for negligently causing the death of a servant, a lineman, by electrocution, the latter's experience in the employment for a period of one year and three months disentitled him to any special protection on the ground of his inexperience. In such action the ten year use by the defendant of poles treated by creosote, though rendering them more dangerous to linemen because of a higher degree of conductivity than untreated dry poles, cannot be held to be negligent, such use being necessitated by the lack of chestnut poles. In such case the use of such treated poles by the defendant for a ten year period had become one of the perils ordinarily incident to the work of a lineman; about which peril the deceased knew or ought to have known, and against which the master was under no obligation to provide further protection than long rubber gloves. Under the above circumstances the deceased assumed the risk of injury from such treated poles as a peril ordinarily incident to his service. In such case, the decedent cannot be held chargeable with only those risks as to which he received specific instructions. In such case the burden is upon the plaintiff to prove that the special danger causing the injury was not known to his decedent. In the above case the defendant could not be found negligent in failing to promulgate rules requiring its servants to take suitable precautions against electrocution while working on the treated poles. A servant assumes, as an incident of his service, any risks which arise from the permanent visible conditions of his master's plant.
CASE, to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant. Trial by jury. Verdict for the plaintiff. Transferred by Connor, J., upon the defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict and to various other rulings of the court which it is unnecessary to enumerate at this time. The plaintiff's intestate was electrocuted upon June 17, 1937, while in the employ of the defendant as a lineman engaged in transferring live wires from one pole to another in the city of Concord. The defendant had accepted the Workmen's Compensation Act. Plaintiff's intestate had been employed by the defendant as a lineman for a year and three months before the accident, and for approximately five years before that, he had been employed by a telephone company, also as a lineman. When the accident occurred he was engaged in transferring the defendant's wires from an old to a new pole owned by the telephone company, and used jointly by it and the defendant. The new pole was a creosote-treated pole of southern pine. Treated poles had been increasingly used by the defendant about Concord for some ten years. While working on or near a live wire, the defendant's right elbow came in contact with a wire carrying 2,300 volts, which caused his death. The only protective devices in use were rubber gloves which extended about half way to the elbow and furnished no protection to the upper part of the arm. It was the claim of the plaintiff that treated poles like that upon which the deceased was working, possessed a higher degree of conductivity than untreated dry poles, from one of which the wires were being removed; that a treated pole was, in effect, grounded and that this increased the hazard of electrocution encountered by linemen, and that the defendant should have warned the deceased of the danger, and protected him therefrom by appropriate safety devices. Other facts appear in the opinion.
Robert W. Upton and Laurence I. Duncan (Mr. Duncan orally), for the plaintiff.
Demond, Sulloway, Piper Jones (Mr. Jones orally), for the defendant.
The plaintiff, having declined the compensation provided by the statute (R. L. c. 216, s. 20), this case is governed by the rules of the common law.
The deceased was an experienced lineman. He had been employed by the defendant as such for a period of one year and three months, a period much longer than that held to be sufficient to charge the plaintiffs with knowledge of the dangers of their employments in Collins v. Company, 68 N.H. 196 (nearly a year), and Burnham v. Railroad, 68 N.H. 567 (two months). The contention underlying much of the plaintiff's argument that the deceased was entitled to special protection upon the ground of inexperience, is definitely rejected.
Under these circumstances the doctrine of assumption of risk, with its corollaries, furnishes a complete answer to the plaintiff's claim. It is familiar law "that the servant assumes the risk of injury from the perils ordinarily incident to his service." Burnham v. Railroad, 68 N.H. 567, and cases cited; 3 Labatt, M S, ss. 1167-1177. "The resulting situation, when considered from the standpoint of the master's duty, is that he is under no obligation to provide against the ordinary risks incident to the performance of the contract of service." 3 Labatt, M S, s. 1167. As stated in the plaintiff's brief, "Treated poles had been increasingly used by the defendant about Concord for some ten years," following the chestnut blight which occurred about 1923, and this enforced use of a substitute for chestnut poles, properly treated to resist moisture, cannot be regarded as negligent. It must, accordingly, be held that, during this ten-year period, any additional risk of injury inherent in the nature of the treated poles had become one of "the perils ordinarily incident to" the work of a lineman, about which the deceased knew or ought to have known and against which the employer was under no obligation to provide safeguards.
The argument that the plaintiff was chargeable only with the knowledge of those risks about which he was shown to have received specific instructions cannot be adopted.
This conclusion is corroborated by the testimony of the plaintiff's witness Howe, a former lineman of the defendant, who testified as follows: "Q. Did it become a matter of general knowledge among the linemen that these poles were a little touchy? A. Yes. Mr. Upton: The linemen with whom he worked? Mr. Jones: Any linemen that worked for the company. Witness: The fellows I worked with out of the Penacook station knew it. Q. A matter of common knowledge with them? A. Yes." The burden of proving that "the special danger causing the injury was not known to" the deceased "and in the exercise of ordinary care by him would not have come to his knowledge," rested upon the plaintiff (Burnham v. Railroad, supra), and there was no evidence to justify the conclusion that the deceased did not know as much about the characteristics of treated poles as the linemen working "out of the Penacook station."
The foregoing conclusions are also fatal to the further argument of the plaintiff that "it could be found that the defendant was negligent not only in failing to warn its employees, but also in failing to promulgate reasonable rules requiring them to take suitable precautions against electrocution while working on creosote-treated poles." As stated by Labatt: "An employee assumes, as an incident of his service, any risks which arise from the permanent, visible conditions of his master's plant." 3 Labatt, M S, s. 1172.
This argument also ignores the testimony of all the plaintiff's witnesses who were asked about it, that on an open pole like the one in question, there was no necessity for any special protection except rubber gloves.
Judgment for the defendant.
PAGE, J., did not sit: the others concurred.