
    Susie L. Van Alstine and Diar Baker, as Administrators, etc., of Orson A. Van Alstine, Deceased, Respondents, v. Standard Light, Heat and Power Company of Unadilla, N. Y., Appellant.
    Third Department,
    November, 14, 1906.
    Master and servant—lineman killed by electric current — negligence of third person — failure to take exceptions to charge which excuses company from liability.
    In an action to recover for the death of a lineman in the employ of an electric lighting company who had been sent out to repair certain wires, it appeared by plaintiff's witnesses that the lineman could not get a proper telephone connection so that he could order the man in charge of" the power house to shut off the current, but that the message had to be repeated through the telephone operator in another town; that the, voices could not be heard distinctly and that instead of receiving the lineman’s message to shut down “after ten minutes ” the man at the power house was directed to shut down “ for ten minutes,” and that after the lineman had been at work for .ten or fifteen minutes the power, was turned on and he was killed. The court charged without exception being taken that the defendant was not liable if the jury believed that the proximate cause of the-accident was a misunderstanding due to the imperfect working of the telephone, and if they found that the message did not reach the power house in the language in which it was sent.
    
      Held, that a verdict for the plaintiff was against the law of the case as established ' by such charge for the evidence was clear that there was a .misunderstanding;
    That, if there was any negligence in transmitting the message it was that of the telephone company; , .
    That the verdict could not be sustained on the ground that the defendant should have promulgated a rule which would prevent the power being turned on'when an employee was at work upon the wires, where the court charged without exception that .no liability arose from such failure.
    Kellogg, J., dissented.
    Appeal by the defendant, the Standard Light, Heat and Power Company of Hnadilla, H. Y., from a judgment of the Supreme. Court in favor of the- plaintiffs, entered in the office of the cleric of-the county of Broome on the 5tli day of January, 1906, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the;5th day of January, 1906, denying the defendant’s motion for a new tidal made upon the minutes.'
    
      Frank Stewart, for the appellant.
    
      William F. Van Cleve, for the respondents.
   Chester, J.:

The plaintiffs have recovered a judgment against the defendant for its alleged negligence in causing the death of plaintiffs’ intestate, who was a lineman in its- employ. The defendant is engaged in furnishing electric light, heat an'd power to the villages of U.nadilla, Sidney and Bainbridge. Its power house is about one mile above Sidney ; its wires run from the power house to Bainbridge, about six miles distant in one direction, and to Unadilla, about four miles distant in .an opposite direction,'as well as to Sidney. On October T, 1902, the plaintiffs’ decedent was directed by the defendant to go to Bainbridge and make certain repairs on some of its wires. Upon arriving there he went to the telephone exchange conducted by the Union Telephone Company and requested the operator there to telephone to the power house to shut off the power as he was ready to go to work. There was some difficulty in talking with the power house, and the message had to be repeated through the operator at Sidney. She testified that the message she repeated to the power house was, “shut off the power after ten minutes,” and the answer she got was, “ all right,” which answer she repeated to the operator at Bainbridge. She testified that she had trouble to make the man' at the power house understand. When the answer all right ” was received by the Bainbridge operator the decedent left the- office and went to the pole to work. This was about twenty-five feet high. He was seen upon the pole near the top shortly after, fixing the wires. While he was so at work a flash of light was seen over the wires and decedent threw up his hands and fell back to the ground. He was rendered unconscious and without gaining consciousness died the same day.

The man employed by the defendant at the power house, whose duty it was to shut off and turn on the current there, testified: “ The message as I understood, was to take the po'wer off for ten minutes. I did not understand the message when I first received it. I. asked (the operator at Sidney) ‘ For ten minutes ? ’ and she said, ‘ yes.’ * * -* I said, ‘ all right.’ ”• He further testified that he shut off the power for fifteen minutes instead of ten and then put it on avid saw something was wrong and took it off again. '

It is evident from the testimony of the operators who transmitted the message, and from the testimony of the man at the power house, who received it, all of whom were sworn for the' plaintiffs, that there was a clear misunderstanding of the message. While there is .a conflict between the testimony of the man at the power house and the one transmitting the message as to what it was, there is no conflict over the question that there was. a mjsunderstanding between them. The court charged the‘jury that-if they believed “the proximate cause of tile accident was a misunderstanding which occurred by reason of the imperfect working of .the telephone at the time in question the defendant would not be responsible,” atid also that if the jury believed “the.message which Tan Alstine sent did nqt reach the .power house in the language which he claims to have sent it, the defendant is. not liable.” That being the law of the case as laid down by the -court) without exception by the plaintiffs’ Counsel, the verdict rendered is clearly against the law, because the evidence is clear and undisputed that there was a misunderstanding. ,

It is evident, too, that the man at the power house- was not careless in doing what he did. He was not told for what purpose the power was to be shut off, and he did just, what he understood he was told to do and took the precaution to leave thé power off five minutes more than he was requested: .

■ It is also manifest that if there was. any carelessness in the -trans^ mission of the message to the man at the power house it was the negligence of the telephone company and not of the defendant.

It is, claimed, however, that the defendant was- negligent in not promulgating such proper and suitable rules for the conduct of- its business as would- have prevented the turning on of the power while the decedent was working on the lines, but no shell question as that was submitted to the jury for determination, and consequently it is not here for review. The only statement- made by the -court -to the jury on -that subject was to charge them at the request of the defendant’s counsel and ydthont exception by plaintiffs’ counsel, “ that no.negligence can be predicated on a- failure to promulgate a rule that' the power should hot be turned on while the lineman is working On the line, as an employer is- not obligéd to promulgate a rule forbidding its employees from doing an act which .would necessarily and obviously result in injury to another employee.”'

If the jury based their verdict upon the defendant’s failure to promulgate such a rule, it could not stand, because it was clearly against the law laid down by the court, without exception, for their direction.

In still a further respect the verdict appears to be against the law of the case as charged by the court without exception, for the jury were instructed “ that negligence cannot be imputed to the defendant where it appears that the accident resulted through a misunderstanding which might have happened even if there -had been a rule.”

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Parker, P. J., concurred; Smith and Cochrane, JJ., concurred ' in result; Kellogg, J., dissented.

- Judgment and order reversed and new trial granted, with costs to appellant to abide event.  