Opinion
September 23, 1913.
John C. Robinson, for the appellant Queensborough Gas and Electric Light Company.
Alexander Cameron [ Charles T. Russell with him on the brief], for the appellant New York Telephone Company.
John M. Ward, for the respondent.
On August 17, 1911, about one o'clock in the afternoon, Michael Larkin, who for five years previous to that date had been in the employ of defendant New York Telephone Company, sustained injuries from an electric shock which resulted in his death. In a common-law action his administratrix has recovered judgment for the pecuniary loss resulting therefrom against the said telephone company and the Queensborough Gas and Electric Light Company, and from such judgment and an order denying a motion for a new trial each of the defendants appeals.
No evidence was introduced by either defendant. We are required, therefore, to determine whether upon plaintiff's evidence either or both of defendants have been shown to be lacking in the exercise of reasonable care, and whether decedent was free from negligence contributing to the injury.
The accident occurred near the intersection of Tanglewood crossing and Ocean avenue in the village of Lawrence. At this point the telephone company had erected a pole upon the crossarms of which wires were strung, and which was known as pole No. 66. Upon another crossarm upon the same pole, and a short distance above these, the gas and electric light company had strung two of its lighting wires, which were intended to, and did convey, a powerful electric current, sufficient if discharged through the body of a man to cause death. There was evidence that at about five o'clock in the afternoon of August fifteenth, during a heavy rainstorm, sparks of fire were seen in the branches of a tree through which the wires of both defendants ran, and near the pole in question. This fact was at once communicated to the electric light company. We may remark in this connection that other evidence offered by plaintiff tended somewhat to discredit this testimony; but for the purposes of this appeal we shall consider the evidence in its most favorable light for plaintiff, and assume its accuracy.
It does not appear that the electric light company had done anything toward remedying the defect, if any defect existed, prior to the time of the accident. It does appear that in some manner the telephone company had learned of some difficulty at the point in question, for on the evening of August sixteenth Larkin, the decedent, was instructed to go the next day to the place "to clear a trouble." Larkin was known as a "splicer." There was another class of workmen employed by the telephone company known as "trouble hunters." The distinction as to their duties is not entirely clear, but it seems to refer to the character of the repairs necessary. If the difficulty was in a single wire, the trouble hunter discovering it might repair it. If it affected a cable, or was a more serious nature, other workmen were employed.
On the morning of August seventeenth, before Larkin was injured, a trouble hunter had visited the scene of the accident, found a burn in the cable carrying a large number of wires, and had reported this to the wire chief, who had instructed him to go on, and that he would report it to the cable department. Under such circumstances the splicers go and clear trouble by splicing and putting on some new piece of wire. When Larkin arrived at the place in question, he climbed the pole and remarked to his helper, "It looks like a blow-out, Jack." This helper testified that "A blow-out is either caused by lightning, or by a high tension current coming in contact with one of our wires blowing a hole into the sheathing. That is what we call a blow-out. This hole we saw before we opened it up was about the size of your finger nail; small finger nail. It was black." The terms "blow-out" and "burn-out" seem to be interchangeable. Plaintiff's evidence is to the effect that "going to a point and seeing a condition that is described by the term `blow-out,' any telephone man or wire man of experience would know that a heavy voltage had got to that spot where the blow-out or burn-out appeared." The rules of the telephone company, with which decedent was shown to be familiar, prescribed that each employee whose duties require it for his own safety, "supply himself, at his own expense, with spurs, body belts, safety straps and rubber gloves." They also provided that "Constant and extraordinary care shall be exercised in all situations where an element of danger is or may be present, as when working in the vicinity of high potential conductors * * *. Employee is warned that light or power wires * * * carrying currents of dangerously high voltage, often exist in close proximity to the wires of this company; that contact with them or leaking of current from them is liable to occur by reasons of storm of all kinds, sagging or breaking of wires, defective insulation, dampness of poles and cross arms, and other causes. Employee is also warned that apparently sound insulation on wires other than telephone wires is frequently insufficient to prevent serious and sometimes fatal results from contact therewith. * * * In all cases where the wires * * * referred to in this or the preceding paragraph, are attached to telephone poles or pass so near them, or telephone wires or cables, as to be within reach of the employee working on or about said pole, wires or cables, such employee shall use safety straps, rubber gloves and rubber boots. Where dangerous conditions exist, and particularly in cases where repairs are being made to telephone circuits that are in trouble, employee shall use said safety straps, rubber gloves and rubber boots." There was also evidence that under circumstances such as are here disclosed, the first duty of a splicer, before making repairs, was to test the cable to ascertain whether there is any stray electric current in the wire. It is true that the witness who thus testified, and who was sent after Larkin's death to repair this cable, in response to a leading question by plaintiff's counsel, said that on this occasion he made the safety test because he knew of the accident on the preceding day. But he afterwards testified that without reference to the fact that a man had been injured, for his own safety he would make the test when there had been a burn-out, and it appeared that Larkin was furnished with a "tester;" which presumably was intended for use when occasion required. After discovering the blow-out Larkin, without making any safety test, or putting on any rubber gloves, after opening the terminal box and taking the clamp off from the cable, proceeded with a tool called splicing scissors to cut the sheathing to expose the wires inside. While thus engaged his helper heard a snapping sound, Larkin called out, "My God, John, I got it," and fell dead.
We fail to see wherein the negligence of the telephone company is established. The complaint alleges that it failed in its duty to provide decedent with a safe place to work and with safe tools and appliances, and neglected to promulgate and enforce reasonable and proper rules and instructions for the protection of its employees. There is no suggestion that any safer or more efficient tools and appliances could have been furnished than were furnished, or that more stringent rules could have been adopted. The danger surrounding the place where Larkin was at work was inherent to the nature of his employment. ( Mullin v. Genesee County Electric Light, Power Gas Co., 202 N.Y. 275.) He had been sent to make safe that which in the ordinary course of events had become dangerous, and his employment was for that very purpose. The learned counsel for respondent contends that the telephone company was at fault in not communicating to decedent the information which it had received earlier in the day, from the trouble hunter, that there was a burn-out in the cable. But Larkin knew this from his own observation before he began work, and no additional information could have been conveyed to him on that subject. The difficulty arose from his deliberate disobedience of the rules of his employer, and his own carelessness in neglecting well-known precautions. Sad as are the consequences, it would be unjust to visit these upon either of the defendants. ( Johnston v. Syracuse Lighting Co., 193 N.Y. 592; McNamee v. Western Union Telegraph Co., 140 App. Div. 874; Griffin v. New York Telephone Co., 144 id. 1; Geer v. New York Pennsylvania Tel. Tel. Co., 144 id. 874.) Another illustration is here afforded of the carelessness which often results from constant familiarity with danger. The learned counsel for plaintiff sought to show that the rule as to the use of the safety test and rubber gloves was habitually disregarded, and that splicing could not well be done with gloves. We think that the evidence fails to establish this. One of the witnesses called by plaintiff, a splicer, after testifying on his direct examination that he had never seen any splicer using gloves, and that the work could not very well be done with them, admitted on cross-examination that "It could be done. The rule required us to do it. We used our own judgment as to whether or not we would obey the rule, or take the risk of not obeying it." The other witness, who was a splicer's helper, and who testified on his direct examination that he had never seen splicers wear rubber gloves prior to the date of the accident, on cross-examination admitted that he did not know what the other men did. But, in any event, there is no evidence that this infraction of the rule, if it was of common occurrence, was ever brought to the attention of the superiors of those thus disobedient.
The judgment and orders should be reversed and a new trial granted, costs to abide the event. As the record contains all of the exceptions taken by either party, and as no error is found in either of the rulings adverse to plaintiff, if plaintiff deems that it will facilitate a speedy determination of this controversy to direct judgment in favor of defendants instead of ordering a new trial, application may be made to this court for an order to that effect.
JENKS, P.J., THOMAS, RICH and STAPLETON, JJ., concurred.
Judgment and orders reversed and new trial granted, costs to abide the event. As the record contains all of the exceptions taken by either party, and as no error is found in either of the rulings adverse to plaintiff, if plaintiff deems that it will facilitate a speedy determination of this controversy to direct judgment in favor of defendants instead of ordering a new trial, application may be made to this court for an order to that effect.