Opinion
May Term, 1903.
Thomas F. Fitzhugh Lee, Alexander S. Lyman and Andrew F. Van Thun, Jr., for the appellant.
William H. Nichols, for the respondent.
The plaintiff was employed by the defendant as a lamp trimmer. On the 9th day of October, 1897, while in the performance of his duties trimming a lamp on the top of a pole twenty feet high, the pole broke, precipitating him to the ground and inflicting the injuries for the recovery of which this action is brought. The pole was about eight inches in diameter at the bottom and tapered to about three inches through at the top. It was sunk in the ground five feet and was found to be rotten inside just below where it entered the ground. The outside shell at this point varied in thickness from one-half an inch to an inch or an inch and one-half and was hard and sound but the inside was soft like pulp. The pole had been used since 1886, but in 1891 it blew down in a wind storm and was reset after five feet from the bottom had been cut off. In 1894 it was undermined by men digging a trench near it and was found to be sound and was again reset. It was of Georgia pine and the lives of poles of that material vary from seven to fourteen years.
The defendant employed a lineman to inspect and test these poles and provided him with a screw driver for that purpose. The method followed was to scrape away the dirt and grass and jab the pole with the driver where it entered the ground as that was where decay first developed. The defendant's witnesses agreed that this method only discovered external defects and they were readily ascertainable. It would not disclose rottenness from the center. The ordinary inspection with a screw driver, therefore, was concededly of no use in apprising a lineman of an internal defect such as existed in the pole which broke off with the plaintiff, and defects of that kind occasionally existed.
The secretary and general manager of the defendant testified that the method of inspection adopted by most companies was that of the screw driver and which was only useful in discovering superficial decay. Internal unsoundness could, however, be detected by striking the pole with a bar and that test was made by the lineman when the pole was reset in 1894.
The court in its main charge to the jury left it for them to find whether the defendant in performing its duty of inspection exercised the care and prudence required of it and also whether a reasonably careful inspection by the lineman would have disclosed the defective condition of this pole. The counsel for the defendant thereupon requested the court to charge as follows: "That if the defect was one not discoverable upon usual and ordinary inspection, the defendant is not liable." The court complied with this request in this language: "I so charge. If you find that this defect as it existed in this pole was one that was not discoverable from the usual and ordinary inspection that has been described, then it was not negligence on the part of the defendant to continue the use of that pole and it is not liable. I intended to charge that, but I overlooked it."
The counsel for the plaintiff later on excepted to this instruction, and requested the court to charge "that their duties require them to make a reasonable inspection," and the following occurred: "The Court: Yes, it must be a reasonable inspection, but I think their duty is discharged when they make the usual and ordinary inspection employed in that kind of business. Mr. Little: I take an exception and ask your Honor to charge that the inspection must be reasonable. The Court: I decline that. That leaves the jury no sort of standard by which to go." After considerable discussion by the court and counsel for the plaintiff on the subject of the manner the inspection was made and its effect and the true rule to be observed, the court finally summed up its conclusions in the following instruction: "I must, at least, state it to the jury as the law of this case, that if they pursued what the testimony shows is the usual and ordinary inspection, that is sufficient to exonerate them from the charge of negligence, and I so charge," to which the counsel excepted.
The evidence was undisputed that the method of inspection ordinarily adopted by telegraph and telephone companies was to make the test with the screw driver, although apparently for the detection of outside decay and it was to this kind of inspection the court referred as that ordinarily in use. The proof is also undisputed that this process of examination or testing would not disclose internal rottenness while a sharp tap with the bar would have crushed in the shell of this pole and revealed its condition. We think, therefore, that the court was in error in stating to the jury that the defendant fulfilled the full measure of its duty if it made the ordinary inspection. The evidence without contradiction showed that it did make the inspection ordinarily in vogue, so the court in effect left no question of fact to the jury, but its instruction was equivalent to the direction of a verdict for the defendant.
The defendant was bound to exercise proper care and make a reasonable inspection of its poles for the safety and protection of the plaintiff, and in the present case it was a question of fact whether it met the measure of its duty. ( McGuire v. Bell Telephone Company, 167 N.Y. 208; Byrne v. Eastmans Co. of N Y, 163 id. 461; Jarvis v. Northern N.Y. Marble Co., 55 App. Div. 272.)
As was said in the last case cited (at p. 275): "It is the province of the jury to determine whether or not a proper inspection has been made by the master when there is any evidence from which it may reasonably be inferred." The duty governing the master is thus stated in McGovern v. C.V.R.R. Co. ( 123 N.Y. 280 at p. 288): "When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger."
It was for the jury to decide from the facts appearing in this case whether the defendant made a reasonable inspection of this pole, and it may not relieve itself from that burden by showing that it made the ordinary inspection, where the test applied concededly failed to disclose the defect which caused this pole to fall and which defect, as the manager of the defendant knew, was liable at times to occur, and which might have been obviated, and the court erroneously withdrew this question from the jury, and for that error the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except McLENNAN, J., dissenting.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.