Walsh v. New York & Queens County Railway Co.

a failure to use the proper appliances furnished by the defendant. Without deciding this question, it may be said that there was a conflict of evidence upon what what were the proper appliances to be used, and there was evidence that the plaintiff, at the time of the accident, was proceeding in a manner used by others, and which was not shown to be improper or to involve greater danger than the method which the defendant claims should have been adopted. The real question here is whether the defendant provided a reasonably safe place in which the plaintiff was to perform his labors; whether it had discharged its duty in protecting him against dangers which were not known and obvious to him in the performance of a duty necessarily involving danger; and whether the plaintiff, in undertaking these dangerous duties, used the degree of care which it was reasonable to expect of him under the circumstances. He was not bound to exercise the highest possible degree of care; he was not bound to fasten the pole with guy ropes, braces, etc., which would make it impossible for the pole to fall, unless the danger of proceeding otherwise was known and obvious upon a reasonable inspection consistent with the discharge of his duties. He had a right to assume that the master had discharged its duty in so far as a reasonable use of his faculties would not disclose to the contrary, and he had a' right to use such of the appliances furnished him by the defendant as appeared to be reasonably adapted to the performance of the rude task before him. Jarvis v. Northern New York Marble Co., 55 App. Div. 272 , 276, 67 N. Y. Supp. 78 , and authority there cited. It was not the duty of the plaintiff to make an inspection of the pole, where the defect was not obvious. That duty the law imposes upon the master (Jarvis v. Northern New York Marble Co., supra), and if the plaintiff was injured while performing'a duty imposed upon him by the master, and while in the exercise of reasonable care, he is entitled to recover. The evidence in this case shows conclusively that the pole was rotten and deteriorated, so that it was liable to fall whenever it was called upon to bear any additional strain. The defendant knew that in sending the plaintiff to the top of the pole for the purpose of removing the heavy cables and wires the pole would be subjected to additional strain, and it was the "duty of the defendant to inspect the pole in order to know whether it was safe for the plaintiff to climb it. The mere fact that the plaintiff did not use all of the.precautions which would have been demanded in the exercise of due care, had he known the condition of the pole, does not deprive him of the right to recover for his injuries where it appears that he used all of the precautions which were demanded under the circumstances as they appeared upon the surface, and where there was no obvious reason for believing that the pole was in a different state of preservation from those about it. Here the accident did not result from any negligence on the part of the plaintiff or of his fellow servants. At least there was evidence from which the jury might reach this conclusion, and the proximate cause of the accident was the defect in the pole which it was the duty of the defendant to make an effort to discover by means of an inspection before asking the plaintiff to undertake the work of removing the cables and wires. McGuire v. Bell Telephone Co., 167 N. Y. 208 , 60 N. E. 433 , 52 L. R.

was evidence that the work of inspection of poles was usually undertaken by men employed for that purpose, and there is no evidence that the defendant had made any proper inspection of the pole where the plaintiff was injured, and this defect in the defense is not met by the fact that the purpose of the work — the removal of the cables from wooden to iron poles — was intended to give notice that the wooden poles were defective. This is only one of the reasons that might have operated to induce the change, and it did not relieve the defendant from the duty of providing a reasonably safe place for the plaintiff to work.

We think the verdict for $3,000 is not excessive, and we are clearly of opinion that the learned court below did not err in refusing to dismiss the complaint at the close of defendant’s case. There were questions of fact for the jury to determine, and with the result reached this court is not prepared to interfere.

The judgment and order appealed from should be affirmed, with costs. All concur, except GOODRICH, P. J., who dissents.

I dissent. The plaintiff was a lineman for 15 years, and familiar with the dangers of that occupation. The accident resulted from his cutting a heavy cable without using the tackle provided for supporting the pole during such an operation. There were fellow servants engaged in doing the work, whose duty it was to examine the condition of the pole, and if they had done this its condition would certainly have appeared. Their failure to do so was the negligence of fellow servants.