Anglin v. American Construction & Trading Co.

109 A.D. 237, 96 N.Y.S. 49

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1905
• Status: Published

Opinions

McLennan, P, J. :

The plaintiff sustained the injuries for which he complains on the ,29th day of April, 1902, while .in defendant’s employ, engaged in stringing wires, upon its poles, by coming in contact with an electric light wire owned and maintained by the Seneca Falls Electric Light Company, which passed close to the telephone poles of the defendant. The negligence of the defendant, it is alleged, consisted, first, in erecting its poles near trees, the branches of which so obscured the electric light wires that their presence could not be known or discovered by\the plaintiff by the exercise of reasonable diligence; and, second, because the defendant faffed ,to cut off the electric Current from the electric light company’s wire before the plaintiff was set to work upon the poles of the defendant.

It appears without contradiction that the plaintiff had had large experience in. doing the work in which he was engaged at the time of the accident; he was also fully acquainted with the locus in quo. By the plaintiff’s own. testimony it is conclusively shown that he knew that the wires of the electric light company ran in close proximity to the pole Upon which he was at Work. He also knew the danger of coming in contact with such wires. Immediately upon going upon the pole he knew of the presence of branches upon the trees adjacent to such pole, and the extent to which they obstructed a view of the wire in question. In other words, he had knowledge of the exact situation as it existed, except as he testifies he did not know that the current had not been shut off from the wire of the electric light company. And the failure to shut such current off is practically the only negligence now urged against the defendant.

It appears that the plaintiff, with other employees of the defendant, was engaged in putting up wires for it under the direction of a competent foreman; that they all knew perfectly well of a simple method of shutting off the electric light current, and that any one of such employees, including the plaintiff, had a right to shut off such current when working upon poles of the defendant in close proximity to-wires carrying such current. The plaintiff and other of defendant’s employees had frequently before the accident shut off such current and thereby made injury from coming in contact with the wires carrying the same impossible. At .the time of the accident it was undoubtedly understood by the plaintiff that the foreman had shut off the electric light current, and undoubtedly at this particular' time it was his duty as between him and the plaintiff to have done so, but the failure of the foreman in that regard, under the circumstances, was the negligence of the coemployee for which the defendant is not liable, hio fault is.found with the method of doing the work adopted by the defendant. It is not suggested that any other or different rules for the safety of its employees should have been adopted. A competent foreman with a sufficient number of men were sent by the defendant to a locality with which all were familiar, to string wires upon its poles. All knew that electric light wires were in close proximity. All knew the danger occasioned thereby and knew how to eliminate all danger, viz., by turning off the electric light current, provision for which had been made by the defendant, and so that any one of such employees could do so at will. As between themselves, we may assume that it was agreed or understood that the foreman should perform such duty and .that because of his neglect in that regard the accident happened. We fail to discover how, even upon that hypothesis, the plaintiff can recover. The foreman, and because of whose neglect in not shutting off the electric current or in warning the plaintiff that it had not been shut off before directing him. to go upon the pole in question, the accident happened, was a co employee of the plaintiff, notwithstanding he occupied the position of foreman. (Northern Pacific R. R. Co. v. Peterson, 162 U. S. 346 ; Keenan v. N. Y., L. E. & W. R. R. Co., 145 N. Y. 190; Barringer v. Delaware & Hudson Canal Co., 19 Hun, 216.)

Having concluded that the defendant was not guilty of actionable negligence under the- circumstances disclosed in this case, we deem it unnecessary to determine any of the other questions involved. It follows that the judgment and order should be reversed and a new Trial granted, with costs to appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.

All concurred, except Spring,. J., who dissented in a memorandum in which Hiscock, J., concurred.