Mullin v. Genesee County Electric Light, Power & Gas Co.

The plaintiff, a lineman employed by the defendant on the 18th day of July, 1907, was injured by the falling of a pole which was part of a line of wires then in course of construction in Genesee county for the transmission of electric power. The action was commenced under the Employers’ Liability Act and the notice required by that statute seems to have been served. That theory was abandoned at the trial, however, and the case went to the jury as one at common law, involv- . ing the question whether the defendant as employer had discharged its duty to the plaintiff to furnish him a rea

The record discloses that, at the time of the accident to the plaintiff, the defendant was engaged in constructing through Genesee county a line of poles and wires for the conveyance of electric power. The plaintiff, an experienced lineman, had worked for the defendant about nine days previous to the accident. The force of men engaged in the construction of this line were divided into “ gangs,” each of which performed different parts of the work, but all were subject to the control of a superintendent and a foreman, both of whom gave orders and hired and discharged men. Broadly stated, the force was divided into the “ ground men,” who dug the holes; the “ framers,” who trimmed and prepared the poles; the “ polesetters,” who placed the poles; and the “ linemen,” who strung the wires. That this division of labor was not strictly observed is evident from the fact that the plaintiff, although a lineman, had assisted in trimming poles. He had nothing to do, however, with the digging of the holes or the setting of the poles. On the day of the accident he was engaged with others in stringing wires. The ends of the wires, three in number, were fastened into holes drilled into a triangular piece of iron, called a running board, at the opposite end of which there was another hole into which was fastened a heavy rope. This rope was thrown over the crossarm on the first pole, a team was attached to the further end of the rope, and the line was thus drawn forward until the running board reached the crossarm, where a lineman was stationed,

At the close of the plaintiff’s case the counsel for the defendant moved for a nonsuit upon the usual grounds that the plaintiff had failed to establish negligence on the part of the defendant, and on the further ground “that the negligence, if any, was that of the fellow-servant of the plaintiff, for which the defendant is not responsible.” To this the trial court replied: “ I think there is a question of fact here for the jury as to whether or not the defendant exercised reasonable care in providing a reasonably safe place for Mullin to do his work,” and thereupon the motion for a nonsuit was denied. To this ruling the defendant’s counsel excepted, and in doing so he further moved for a nonsuit upon the specific ground

From what we have already said it is evident that the case turns upon the question whether it was the defendant’s duty to furnish the plaintiff with a safe place in which to work. To state it differently, the question is whether the general rule that it is the duty of the master to exercise reasonable care to provide a fairly safe working place for his servants, applies to a case like the one at bar. That rule does not apply ce where the prosecution of the work itself makes the place and creates the danger.” (O’Connell v. Clark, 22 App. Div. 466 ; Stourbridge v. Brooklyn City R. R. Co., 9 App. Div. 129 ; Citrone v. O'Rourke Engineering Construction Co., 188 N. Y. 339 ; Capasso v. Woolfolk, 163 N. Y. 472 , 476; Perry v. Rogers, 157 N. Y. 251 .) The reason for this exception to the general rule is that it would be manifestly absurd to hold a master to the duty of providing a safe place when the very work in which the servant is engaged makes it unsafe. If a man is engaged in tearing down a house he is constantly exposed to dangers of his own creation; and in such a case all those who are engaged in the same common purpose are fellow-servants for whose negligence in executing the details of the work the master is not hable, even though “ the work is done in successive stages, different parts thereof being devolved upon different persons, and the labor performed by one set of employees being prior in time to that performed by another set.” (Citrone v. O'Rourke Engineering Constr. Co., 343, supra, and cases there cited.)

In the case at bar the evidence tended to establish that the pole which fell with the plaintiff had not been prop

The judgment must be reversed and a new trial granted, costs to abide the event.

Cullen, Ch. J., Haight, Willard Bartlett, Hiscock, Chase and Collin, JJ., concur. ,

Judgment reversed, etc.