Consolidated Gas Electric Light & Power Co. & Baltimore Electric Co. v. Chambers

Boyd, C. J., delivered the opinion of the Court. This suit was instituted by the appellee against the Consolidated G-as Electric Light and Power Company, Baltimore Electric Company of Baltimore City and the Maryland Telephone Company. At the end of the plaintiff’s case, a verdict was rendered in favor of the Telephone Company, and the case proceeded against the other two companies, resulting in a verdict in favor of the plaintiff against them. We will speak of the first named as the Consolidated • Company, of the second as the Electric Company, and of the other as the Telephone Company.

There was a pole about sixty feet high, on the comer of Eorest avenue and' Ware alley, in Baltimore City, which was owned by the Telephone Company, and which was used by the three companies—although the record does not accurately show what arrangement there was between them. There were five cross-arms of the Telephone Company at the top, then three of the Electric Company, and one of the Consolidated Company. The latter was about thirty-five feet from the ground. On May 21st, 1907, the plaintiff and Prank B. Ford, who were linemen of the Electric Company, were ordered to put three cross-arms on this pole, which we understand to be the three mentioned' above.

The plaintiff said ³³⁰ that his duties as lineman were to climb poles, put on cross-arms, string wires and hang transformers, and Ford spoke also of putting up poles. They had put two of the cross-arms on, and were about to put the third on when the plain tiff, to quote his testimony, “started to get in position to do the work and stepped on this cross-arm which broke and he fell to the ground.” The cross-arm which broke belonged to the Consolidated Company and was the lowest one on the pole. The plaintiff testified that before he stepped on it, he looked at it and it appeared to be sound; that he could not have done the work without standing on the arm, because it was in the way; that he could not have stood on one of the steps (which consisted of iron spikes placed in the pole about eighteen inches apart), because they did not come up that far, and were not close enough to stand on. Ford testified that he told plaintiff to get around the pole, so he (Ford) could set the bolts and put the nuts on, and as plaintiff got down from the position he was in he put his foot on the arm about eighteen inches from the pole, and over the top of the brace, and “almost before I knew anything, Mr. Chambers left me and I was on the pole by myself.” He also said that was the proper place for the plaintiff to go to get the arm the way he wanted it, to adjust it so as to get the bolts in, and that there was no other position the plaintiff could have taken to do that work.

The testimony tends to show that the cross-arms are ten feet long, and three and a. quarter by four and a half inches thick, and that the one that broke had the “dry rot” on the inside. The plaintiff was very badly injured by the fall. The two companies offered separate prayers. The Electric Company has abandoned its exceptions, excepting those to the rejection of its first, second', third and fourth prayers, and to overruling its special exception to the plaintiff’s first prayer, which was granted.

Those prayers of that company were intended to take the case from the jury, and we will first consider them. It will be borne in mind that the plaintiff was an employee of the Electric Company, and he went ³³¹ upon the pole to do certain work for that company. The question presented by those prayers is whether the plaintiff is entitled to recover from his employer, the Electric Company, for injuries sustained by reason of the cross-arm of the Consolidated Company being defective and breaking under his weight. The ground relied on in the declaration for a recovery against the defendants is: “That the rottenness of said cross-arm was unknown and not obvious to the plaintiff, because the paint on said cross-arm concealed from the plaintiff the said rottenness.

That it was the duty of said defendants to said plaintiff, when performing his duties as lineman on-said pole, by the exercise of ordinary care to have discovered the rottenness of said cross-arm and removed the same or warned the said plaintiff of the rottenness of said cross-arm. This the defendants negligently and carelessly failed to do,” etc. One peculiarity about the case is the fact that the plaintiff, as the lineman of the Electric Company, was injured by a cross-arm which belonged to the Consolidated Company, over which the Electric Company had no control. The alleged violation of duty by the two companies is therefore based on two separate grounds—the one sending its employee into a dangerous place without warning him, or previously examining it, and the other maintaining a dangerous place. There is nothing to show that the Electric Company had the right to remove the defective cross-arm, and therefore its responsibility, if any, must rest on the failure to discover the defect and warn the plaintiff of it.

It is not contended that it did make an examination or test of the cross-arm, or did warn the plaintiff that it was defective. The precise question, therefore, that presents itself in limine is, whether it was the duty of that company to have inspected the cross-arm of the other company, before sending the plaintiff upon the pole. The general use of electricity for various purposes has brought before the Courts many cases involving the duty, vel non, of inspecting poles and their appurtenances. The ³³² plaintiff testified that he did not know of any system of inspecting the poles this defendant had, and there is no proof that it had any beyond what the linemen themselves did.

He was not therefore misled by any knowledge of inspection by the company. He had been engaged in the work of lineman for fourteen years, had been employed by ten other companies, doing regular lineman’s work, such as climbing poles, stringing wires, working on cross-arms, etc. He had worked for this company for four months before he was injured, and had previously worked for it, probably a year or so altogether, but had not worked for the Consolidated Company. He was an experienced lineman, and of course, knew, as he testified, that cross-arms sometimes broke, that they sometimes became rotten from one cause or another, and that there was a certain amount of danger in going on one. He had a safety belt with him and was told by his companion to put it on.

It is not easy to see, therefore, why under such circumstances his -employer should be held responsible for what he manifestly had as good an opportunity to detect as any other employee of his employer would have had. Of course, if a company had, to the knowledge of its linemen, a regular system of inspection of the poles and cross-arms, independent of what the linemen themselves would be supposed to malee, another question would arise, for then the linemen would have the right to assume that the independent inspection had been made. It is therefore not surprising to find that, in the absence of such'independent inspection, the general weight of authority is that “an experienced lineman assumes the risk of the breaking of any pole he is called upon' to climb in the course of his employment, if the defect which caused the pole to break was not of original construction, and that therefore his employer owes him no duty to inspect the pole before sending him upon it.” Note to Lynch v. Saginaw Valley Traction Co., 153 Mich. 174, reported in 21 L. R. A. N. S. 774, where a great many cases are cited. There is no evidence tending to show that there was an original defect in this cross-arm. ³³³ It is true that the plaintiff testified that he had never been specially instructed as to detecting faults in cross-arms, so as to see whether they were rotten or not, but it would not require more special knowledge than a lineman of ordinary intelligence, of fourteen years’ experience, would be presumed to have, to make such a test as would be necessary to make himself reasonably safe.

As was said in Mclsaac v. Northampton Lighting Co., 172 Mass. 89 , in speaking of linemen: “They easily could make any necessary tests to ascertain the condition of the poles as to soundness without the aid of special inspectors, and, from their knowledge of common affairs, could judge whether the pole was safe to go upon.” And again in that case, it was said, the plaintiff “must have known that it would be inexpedient and impracticable to have a man or company of men to go and examine each pole upon which a lineman was about to work, to see whether it would sustain the strain which the work would put upon it.” In Sias v. Con. Lighting Co., 73 Vt. 35 , it was said, in speaking of a lineman’s examination of a pole before going on it: “It is auxiliary to the lineman’s principal work, can be conveniently made in connection with it, and'requires no' separate training. It is difficult to conceive of any preliminary work that would be more clearly in the line of the servant’s duty. It could hardly be required that a company send - ing out a gang of men to repair its line should send other men before them to inspect the poles, and determine which could safely be climbed without the taking of precautions.” In McGorty v. S. N. E. Tel.

Co., 69 Conn. 635 , referred to in Stewart & Co. v. Harman, 108 Md. 451 , it was said: “It cannot be laid down as a proposition of law, as seems to be claimed by plaintiff’s counsel, that the linemen of telegraph and telephone companies have a right to rely upon the soundness and safety of the poles upon which they are working, and that it is the duty of such companies to inspect and test poles, and support such- as are insecure, before permitting their linemen to climb them. Whether it is incumbent upon the master or the servant to perform such a duty is usually a ³³⁴ question of fact depending upon the terms of the contract of employment, the servant’s knowledge of the hazaids of the work in which he is engaged, his ability and opportunity to discover the dangers to which he is exposed and to avoid them, and upon other circumstances.” The same rule is applicable to the cross-aims upon electric poles. In Flood v. U. N. Tel. Co., 131 N. Y. 603 , a lineman was killed by the breaking of a cross-arm on which he sat while working on one of the defendant’s poles.

It was there said: “The defendant had a system of inspection which appears to have been all