State v. Chesapeake & Potomac Telephone Co.

Urner, J., delivered the opinion of the Court. By a demurrer, which the trial court sustained, the defendant corporation questioned the sufficiency of a declaration which alleged, in effect, that, as the owner and operator of a line of telephone poles and wires in Somerset County, it entered into an agreement with a firm of contractors for certain alterations, improvements, and additions to its line; that, in the course of the work required by the contract, the ⁵⁷⁴ Husband of one of tHe personal plaintiffs, upon whom she and His father, another plaintiff, were dependent, was engaged as a lineman in the employ of the contractors in the performance of His duty at or near the top of one of the defendant’s poles, and was fatally injured by the fall of the pole in consequence of its decayed and defective condition, of which the employee and the contractors were not aware, and which they could not observe by ordinary care, but which the defendant knew or should have known, in the exercise of due care for the safety of employees required to ascend it in the course of their duty, and negligently failed to warn the contractors and their employees of its condition; and that the corporate plaintiff, as insurer, is obligated to pay an award by the State Industrial Accident Commission to the dependents of the deceased employee under the Workmen’s Compensation Law of Maryland. The suit is brought under the provision of that act authorizing action by an injured employee, or by his dependents in case of his death from a compensable accident, and by the insurer, to enforce the legal liability of any person other than the employer to pay damages on account of the injury ox death for which compensation under the act is payable. Code, art. 101, sec. 58.

In support of the demurrer it- was argued that the terms of the agreement between the defendant and the contractors should have been alleged in the declaration. Eor the purpose of this suit the reference to the contract is adequate. It was appropriately averred as the occasion for the deceased lineman’s rightful presence on the defendant’s property at the time and place of his injury, and it is described to the extent necessary to show that he was acting as an employee of independent contractors. Its terms and effect were not required to be more particularly stated.

It is said that the defendant is not in the position of a “person other than the employer,” and is therefore not amenable to this action under the provision already cited. But the adoption of that theory is prevented by the tenor of the declaration and by prior decisions of this court. It is ⁵⁷⁵ alleged that the injured lineman was the employee of a contractor to whom the defendant had committed “certain alterations, improvements and additions” to its telephone line. In the brief for the defendant, on appeal, the declaration is construed as showing that the contractors were “intrusted” with the “entire work” therein described.

Since the averments definitely exclude the theory that the lineman may have been an employee of the defendant corporation, the conclusion must follow, on demurrer, that the defendant is in the situation of a person other than the contractors by whom he is alleged to have been independently employed. This view is fully supported by the decisions in Bethlehem Steel Co. v. Variety Co., 139 Md. 313 , 115 A. 59 , 31 A. L. R. 1021, and Bethlehem Steel Co. v. Raymond Concrete Pile Co., 141 Md. 67 , 118 A. 279 . It is contended that the declaration should have been more .specific in its description of the condition which is alleged to have made the pole unsafe, and it is said to be hard to conceive how such a condition could have existed and have been ascertainable by the defendant and yet have escaped the observation of tire lineman and the contractors if they were exercising due care. The opportunity of a lineman to learn the condition of a pole which his duty requires him to ascend is ordinarily equal to that of any of the owner’s employees who may be detailed for its inspection.

In Consolidated Gas Co. v. Chambers, 112 Md. 324, 334 , 75 A. 241, 244 , it was said to be the general rule, to be deduced from the cases there cited, that “when the employer has no independent system of inspection of poles, cross-arms, steps, etc., and the lineman has no reason to believe that such inspection is made, he had no right to rely on the employer for such inspection, but must make such tests himself as may be necessary to ascertain whether it is safe to go upon them, and cannot hold the employer responsible for injuries received by him by