Tweed v. Hudson River Telephone Co. — 130 A.D. 231

Majority

p. 231

Samuel M. Tweed, Respondent, v. Hudson River Telephone Company, Appellant.

Second Department,

January 8, 1909.

Headnote

Master and servant—negligence — injury to lineman erecting telephone wires—-facts not establishing negligence of master — safe place to work.

A lineman of experience who was injured by the parting of a splice which he himself helped to make in a telephone “messenger" wire from which he was required to suspend- himself in order to attach hooks to sustain other wires, cannot recover from his master in a common-law action upon the ground that the foreman directed the splice to he made midway between two poles rather than at or near one of them, where there is no proof that the foreman or plaintiff’s fellow-servants were incompetent or that experience had demonstrated that such construction was unsafe.-

Mor can negligence he predicated upon the fact that the master permitted the use of "two-clamp" splices instead of “three-clamp’’splices where there is no evidence that the former when properly made were less safe than the latter, or that any similar accident had ever happened from the use of two-clamp splices, and there is no allegation that the material furnished by the master was defective.

Where a master has supplied all necessary materials and provided a safe place to work, his servant is hound to use his own intelligence in carrying out the details of the work. The law does not make the employer an insurer, nor create a liability for a mere error of judgment on the part of the foreman in making suggestions as to a detail of the work, unless the case be brought within the Employers’ Liability Act.

The duty of furnishing a safe place to work does not- require a master to superintend each step in the work of construction to see that at all times his serv- . ants have preserved conditions of safety.

Appeal by the defendant, The Hudson River Telephone Company, from a judgment of the Supreme Court in favor of the plain

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tiff, entered in the office of the clerk of the county of Orange on the 1st day of June, 1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of June, 1908, as amended by an order entered on the 15th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Murray Downs, for the appellant.

Henry Kohl, for the respondent.

The plaintiff in this action was employed as a lineman in the construction of a new telephone line. He was engaged with six or seven others, and the work consisted of erecting the poles and then stringing what was known as a messenger wire, which is the preliminary cable stretched from pole to pole, and subsequently supplied with loops or hooks, to which are attached the telephone wires or cables. The plaintiff’s particular duties after this messenger wire was strung were to climb a pole, attach himself to this messenger wire by means of a safety strap, and to propel himself along the same for the purpose of attaching the loops or hooks. ' On the 13th day of 'February, 1907, while engaged in this work, the cable on which he was suspended in midair parted at a splice about halfway between the poles, and the plaintiff fell to the ground, sustaining more or less serious, injuries. The plaintiff, in company with a fellow-employee, under the direction of the foreman of the working crew, had made the splice which parted soon after dinner on the day of the accident; he had been up one of the poles and worked his way down to the splice without trouble, had then gone back and up the next pole, and had reached a point near the splice from that direction, when the fastening pulled out in some way and the accident resulted. There is no claim under the Employers’ Liability Act; no suggestion in the pleadings that the foreman or any of the fellow-laborers were not competent and reliable men for this work, and it is not' claimed that the defendant did not supply a sufficient number of clamps, bolts, etc., for the purpose of making the splice in the cable where one cable came to an end and it was necessary to attach a new one. The plaintiff himself testified that all of these:

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supplies were at hand, and the only claim of negligence appears to be that the defendant had changed the method of splicing from a three-clamp splice to a two-clamp splice, and that it had permitted its foreman to direct that the splice should be made between the poles* instead of at or near a pole, it being claimed that the strain would be greater at the intermediate point than at or near one of the poles. But there was no evidence in the case, so far as we discover, that the defendant had provided for making the splice at the .particular point. It was engaged in the work of constructing a telephone line; it was necessary, and an incidental part of such construction, that the cable should be spliced at the end of each length of cable, and the plaintiff himself had helped in making such splices on the very day of the accident besides the one where he was injured. This work the defendant had intrusted to a competent foreman, with competent helpers, and the fact that the foreman may have erred in judgment in directing the splice to be made midway between the poles instead of at or near one of the poles, in the absence of evidence that experience had demonstrated the unsafety of such construction, so that the defendant should have made regulations about it, does not constitute actionable negligence as^ against the defendant.

This leaves the only question of negligence to depend upon the question of whether the defendant disregarded any duty in changing from the three-clamp splice to the two-clamp splice, and in this regard the evidence fails to show that a two-clamp splice, properly made, was not a proper and safe splice; that it was any less safe than the other one. It appears that just such splices had been made by the defendant before; that it had, through the plaintiff and others, made just such splices on the very day of the accident, and that no dangers resulted. The plaintiff was a man of three years’ experience in this kind of work.; he testified that he knew about these splices, knew how they were made, and had made them himself, and that there was plenty of material furnished by the defendant for making such splices. There is no evidence that such an accident ever happened before from the use of the two-clamp splice, or that any one of reasonable judgment had ever suggested that there was any danger from the use of the splicing materials furnished by the defendant; and it is impossible to read this record without com

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ing to the conclusion that the jury simply concluded that the fact that this splice did pull apart and injure the plaintiff entitled him to recover, for there is clearly. no point. at which the defendant is shown, to have neglected any duty which it owed to the plaintiff. It might as well be said that a carpenter, who found it necessary to splice a stick of timber, and who was supplied with all of the materials necessary to make a safe splice, could recover because of abreak in such splice resulting from his own failure to properly do the work, or from an error in judgment on the part of a foreman on the work. The law does not make an employer an insurer; it calls. upon án employe to use his own intelligence in carrying out the details of the work in which he is engaged ; and where the master has supplied all necessary materials — and here there is no suggestion of defect in the materials provided— and has provided a reasonably safe place in which to perform the duties, there is no liability for the mere error of judgment on the part of a foreman in making suggestions as to a detail of the work, unless the case is brought within the provisions of the Employers’ Liability Act.^[1] And a safe place in which to perform the services does not require the master to superintend-each step of the work of construction to see that at all times the employee has preserved the conditions of safety. The work in which the plaintiff was engaged was obviously a dangerous one; he was suspended high in the air upon a single seven-wire cable. He knew .that his safety depended upon the splice; he knew this just as well as the master could have known it;, he knew the added danger, if there was added danger, in making the splice midway between the poles, and he was likewise as competent to judge as any other man, exercising reasonable care, as to the security of the two-clamp splice.

The judgment and order appealed from should be reversed.

Jenks, Gaynor and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

* Laws ofl903, chap. 600.—[Rep.