
    George M. La Duke, Respondent, v. Hudson River Telephone Company, Appellant.
    Third Department,
    December 30, 1909.
    Master and servant — negligence — injury to lineman by fall of pole — duty of inspection — safe place to work — erroneous charge.
    A telephone company which removes obsolete poles merely because it inaugurates a system requiring new poles, is under the duty of inspecting the poles beneath the surface of the ■ ground in order to discover whether they have rotted so as to be dangerous before requiring an employee to climb them, unless the duty to make such inspection has been placed upon the lineman.
    A lineman removing such poles who is not required by his contract of employment or by his master’s' method of conducting its business to inspect the poles below the ground is justified in assuming that the poles were inspected before he was directed to remove them.
    Where a master charged with negligence in failing to inspect a pole beneath the ground, which broke and injured a lineman who ascended it, has given evidence that it was its custom to require its linemen to test.poles for themselves, it is error to charge that no duty of inspection was cast upon the linemen.
    Appeal by the defendant, the Hudson Eiver Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the '21st day of ¡November, 1908, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 10th day of December, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    This is an action to recover damages for the alleged negligence of defendant, a telephone company, resulting in personal injuries to plaintiff. He was in the service of the defendant as a lineman and was engaged in- removing poles of one of the defendant’s telephone lines not because the poles were old and worn out, but because defendant had inaugurated a new system and the poles were, therefore, obsolete and unnecessary. He climbed one of the poles'and cut the wires which extended from the top, when the pole fell with him causing his injuries. The direct and immediate cause of the accident was the rotten condition óf the pole beneath the surface of the ground which caused it to break at that point when deprived of the support of the extending wires at the top. Engaged with plaintiff in the performance of this work was one Higgs, to whose directions plaintiff was subject, but who was not present at the time of the accident.
    On a former appeal a judgment herein in favor of plaintiff was reversed as against the weight of evidence. (124 App. Div. 106.)
    Weeds, Conway & Cotter [Thomas JB. Cotter of counsel], for the appellant.
    
      Fred M. La JDuke, for the respondent.
   Cochrane, J.:

In fulfillment of its duty to furnish the plaintiff a reasonably safe place in which to work it was incumbent on defendant to inspect its poles below the surface of the ground unless it had devolved such duty of inspection upon the plaintiff himself. (McGuire v. Bell Telephone Co., 167 N. Y. 208; Riker v. New York, Ontario & Western R. Co., 64 App. Div. 357.)

Whether or not this duty of inspection had been devolved on plaintiff was an important question towards which both parties directed their evidence. Unless the devolution of such duty on the plaintiff had taken place either by his contract of employment with the defendant or by the defendant’s method of conducting its business to his knowledge, he clearly was justified under the above-cited authorities in the assumption that the pole in question had been inspected beneath the-surface of the ground by the defendant before. he entered upon the task of its removal. The evidence shows that there is a well-understood method of making such inspection by removing the dirt from the base of the pole and injecting into it some sharp instrument which will disclose, its rotten or decayed condition if' such exists. There is no evidence that plaintiff was instructed to make his own inspection. He introduced evidence to the effect that the defendant made systematic and periodical inspections of its poles by men detailed for that purpose, and' that its linemen in working on poles did not make such inspection prior to ascending them.

The defendant on the other hand produced evidence tending to show that the linemen made their own inspection. The district foreman of the defendant, who had been in its employ for thirteen years, testified : It is a practice and custom for each man to test the pole for himself. That has been true while I worked for the company,” Another witness who had worked for the defendant a number of years as lineman, both as foreman and member of a gang, and who had tested poles below the surface of the ground, testified that he never saw any man making tests who was not working on a line. Still another witness who had, served the defendant for twenty years as lineman, foreman and district manager, and who was familiar with tests of telephone poles, testified that during all the time of his employment it had not been the custom or practice of defendant to have inspections made except by the men working on the line, and that the defendant had never made inspection of its poles below the surface of 'the ground from time to time. If such was the custom of the defendant, the plaintiff, who had on a previous occasion been in its employ as a lineman for six months, may well have known of such custom and understood therefrom that it was his duty to make 1ns own inspection.

Such being the condition of the evidence relative to the important question as to ■ which party had the duty of inspection, the learned trial justice after charging the jury that such duty primarily rested on the defendant, but that the latter claimed that such duty had devolved on the linemen, continued as follows: “ Row much of the evidence in this case lias been bearing on that subject, and I say to you that in order to find that such was the fact you must find that it was so understood between the defendant and the plaintiff. If the plaintiff • understood that the duty of inspection devolved upon him as part of his duty in connection with 1ns labors, that that was their agreement and understanding, then the plaintiff has no standing in court, because lie cannot complain that defendant had. neglected him in regard to inspection. Row, I am going to say to you that I find no evidence that would justify you in finding that fact. It may be that Higgs was a lineman, it may be that other employees have held that relation to defendant, but I am going to charge you that there is no evidence that will justify you in finding that fact; that in hiring the plaintiff and setting him to work as an employee of the defendant — there are no facts that would justify you in finding that the duty of inspection devolved upon him.” And again, in response to one of defendant’s requests to charge, the court said : “ I have charged you that there is no fact that would justify you in finding that the duty of inspection devolved upon plaintiff* so as to relieve defendant of that duty.” To this charge an exception was duly taken.

It is clear from the testimony, reference to which has. been made, that a very substantial question of fact existed as to this important question, and the trial justice by taking that question from the jury and instructing them unequivocally that the duty of inspection had not devolved upon plaintiff committed a highly prejudicial error. Whatever may have been the condition of the record on the former appeal the present record leaves no doubt that .the jury rather than the court should have determined on which party the duty of inspection rested, and it makes no difference that the telephone line was not in active use, although the trial justice seemed to draw such a distinction. The charge, as made, that the duty of ■ inspection rested primarily on the deféndant and that siich duty had not been devolved by it upon the plaintiff was practically tantamount to an instruction as matter of law that the defendant was negligent because there was no claim by the latter that any inspection had in fact been made.

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

All concurred Kellogg, J., in result.

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