
    George W. Voorhees, as Administrator, etc., of Schuyler H. Voorhees, Deceased, Respondent, v. Hudson River Telephone Company, Appellant.
    Third Department,
    November, 1905.
    Negligence—injury by'telephone pole falling with lineman—assumption of risk—failure to show intestate’s freedom from contributory negligence.
    A lineman was directed to transfer wires to a new pole erected within a foot of one which had previously broken beneath the ground and was supported by a guy. He was warned to use care because the pole was old. He had with him all necessary apparatus, safely to perform the work. He himself tied the poles together at the top, and later was found under the top of the old pole which had fallen. The wires and crossarm had been removed and the guy either broken or cut and the rope with which he had tied the poles together was found untied but unbroken. There was no evidence of any care on the part of the intestate either in examining the old pole or in connection with the work of transferring the wires.
    
      
      EM, that, béing warned to use care, the danger that the old pole would fall was a risk which he assumed;
    That evidence of intestate’s freedom from contributory negligence was insufficient. Chester, J., dissented, with opinion.
    | Appeal by the defendant, the Hudson River 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 Rensselaer on the 2d day of June, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18th day of May, 1905, denying the defendant’s motion for-a new trial made upon the minutes.
    
      Lewis E. Griffith, for the appellant.
    
      George B. Wellington and Jarvis P. O'Brien, for the respondent.
   Chase, J.:

Plaintiff’s intestate was a lineman in'the employ of the defendant and was killed by the falling of a telephone pole on the 19th day of October, 1904. The pole in question was on the west side, of a roadway running nearly north and south in or near the village of Hoosick and attached to it were telephone and telegraph wires. On the 5th day of September, 1904, the pole with the wires fell into the street. It was again put in a perpendicular positibn, the foot of the pole resting on the part from which it had been broken. The wires were on a slight curve that pulled the pole to the east and a guy wire was fastened from the pole to a building situated west of the street. Some time between September fifth and October- nineteenth a new pole was erected within eight to twelve inches of the old pole, which new pole was designed to take the wii;es that were then fastened to the crossarm of the old pole. The old pole was broken off from two to four inches below the surface of the ground. A. person by ordinary observation would not notice whether the pole had been-broken off unless he went to look at the foot of it.

On the day of the accident the local manager of the defendant telephoned to. the intestate that the Postal Telegraph Company had Set a new pole in place of the old one and directed him to change the wires and to be earefuL The local manager testified that he said to the intestate that there had been a new pole set to take the place of an old one somewhere in the village of Hoosick and that it was an old pole and to be careful and not take any chances. The intestate went to the place where the new pole was erected and climbed the new pole. He had a helper, and he asked the helper for a halter, and it was thrown to him, and with the halter the intestate tied the new and the old poles together at the top. The helper was then sent by the intestate on an errand and shortly thereafter people near the location of the pole heard a crash and found that the old pole had fallen, and that the intestate was under the pole near the top thereof, seriously injured. The wires had been removed from the crossarm and the crossarm had been unbolted from the pole and lay on the ground near the pole, and the rope halter with which the poles had been tied together was lying on the ground near the pole untied and unbroken. The intestate died a few hours thereafter. On these facts the jury found the defendant negligent and the intestate free from negligence contributing to the injury.

We think the verdict was against the evidence. The intestate knew that the old pole was about to be abandoned and that the work to be performed by him in transferring the .wires was to complete its abandonment. He had with him all necessary apparatus to safely perform the work. He was cautioned to be careful, because the pole was an old one. . The only care required because of the fact of the pole being an old one was by reason of the danger that it might fall when the wires supporting it were removed. If the pole was in danger of falling such,danger was a necessary risk in transferring the wires. There is not the slightest evidence of any care on the- part of the intestate either in the examination of the old pole before climbing the new pole or in connection, with the work performed by him in transferring the wires. It may be assumed that he ascertained that the pole was in danger of falling if the supports from the wires and guy were removed, because the first thing that he did upon climbing the new pole was to tie the two poles together at the top. The only evidence before us relating to the subject of tying poles together at the top before removing the wires is that such tying of the poles is only done when there is some visible danger of the old pole falling. If the tying had been properly done by the intestate, the old pole could not have fallen. What more than' tying the poles together at the top could the intestate ■ have done, if lie had been expressly told that the old pole- had been broken at the bottom, and that unless secured it would fall as soon as its supports were removed ? The intestate, by what, he did, admitted that' he knew that the old pole was in danger of falling. Whether the intestate changed his position from the top of the new pole and climbed the old one, or was thrown to the ground in some other manner than while on the old pole, at work, does not appear. Neither does it appear whether the guy wire that held the old pole from the west was broken or had been cut by the intestate. Just how the accident happened is a matter of conjecture, and the most probable conjecture is that the intestate, knowing -that the old pole was in danger of falling as. soon as the wires and guy were removed therefrom, tied it to the new pole with the halter and then removed the wires and cut' the guy, depending upon the halter to hold the old polé to the new one, and that by reason of the fact that the halter was insecurely tied by him, it became untied and let the old pole fall, and that t'hp intestate being, at least to some extent, v sustained by the old pole, fell with it and1 received the injuries '• which caused his death. The plaintiff was required, to'show affirmatively that the intestate was free from negligence contributing to his death. It was not necessary to establish such fact by direct evidence,. but where the circumstances are relied upon in the absence of direct evidence to show a lack of contributory negligence, they should point-by a fair and reasonable inference to' such conclusion. The circumstances disclosed by the record -now before us do not sustain the conclusion that the intestate was free from contributory negligence, and the judgment and order should -be reversed and a new trial granted, with costs to the appellant to abide the event. 1

All concurred, except Chester, J., dissenting in opinion; Houghton,, J., not sitting.

Chester, J. (dissenting): ■

There was sufficient evidence of the defendant’s negligence to-justify the submission of that question to the jury. Its manager knew that the old pole had" fallen and had been reset. It was not sufficient under such circumstances to tell the deceased that the pole was an old one and to be careful and not take any chances. The mere fact that the deceased was sent to replace the wires from one pole to .the other would be sufficient notice to him that one was an old pole, without the manager telling him that fact, but the manager knew that the pole had rotted off'and had fallen and had been reset. He should have stated those facts to the deceased, so as to put him on his guard and to excite greater care on his part. There is no proof that the deceased had any knowledge that the pole had fallen and had been reset. The defendant’s manager having this knowledge, and the deceased not having it, common prudence required that the latter should have been informed of it. There was, therefore, enough on this branch .of the 'case to justify the submission of the question to the jury.

. ! think, too, that enough was shown by the plaintiff to satisfy the rule of law requiring him to establish affirmatively by a preponderance of evidence that the decedent was free from any fault which contributed to the accident. In cases where, as here, there was no eye-witness to the accident,, the rule in this respect has been somewhat relaxed. It has been permitted in such cases to show the absence of contributory negligence by circumstantial evidence.

"While the evidence is somewhat meagre, I think there is sufficient in the circumstances to show such absence. Besides this, there was direct evidence that the -deceased was a careful man; that he climbed the new pole instead of the old pole to prosecute his work, and that he took the precaution to tie the old pole to the new one. It, is manifest, however, because of. the length of the arms, that he could not have removed the wire from the arms of the old pole without getting upon that pole. When he was found injured he was lying on the ground under one of the arms of the old pole which had fallen. His getting on the old pole is not evidence of contributory negligence, for there was no visible danger, as the place where the pole was broken was concealed beneath the ground, and the pole at the ground appeared to be sound.

This case is one brought under the Employers’ Liability Act (Laws of 1902, chap. 600). It is provided in section 3 of that act as follows : An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall * * * be considered as including those risks, and those only, inherent in the nature of the business which remain.after the employer has .exercised due care in providing for the safety óf his employees.” The jury having found the defendant negligent in not providing for the safety of the decedent upon sufficient evidence, the falling of the pole was not, under the statute, one of the necessary risks assumed by him. The defendant’s manager knew of the defect in the pole, and due care for the safety of the employee should have prompted the manager to have told the decedent of the -defect in the pole before setting him to work thereon.

The same section provides that the question whether. the employee understood and assumed the risk of such injury or was guilty of contributory negligence by his continuance in the same place and course of employment with knowledge of the risk .of injury shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.” That being the law where the employee has knowledge of the risk it could not be properly claimed that it was any the less a question of fact where, as here, he had no such knowledge. The defect in the pole not having been an obvious one and the risk not a necessary one under the statute, the question of the negligence of the deceased was, under the circumstances shown here, properly left to the jury, and I think there was sufficient evidence to support the verdict.

The principles involved in the case are' very much like those discussed in Irish v. Union Bag & Paper Co. (103 App. Div. 45; afid., 183 N. Y.--). If, as I think, the verdict here is not against the weight of evidence, the conclusion reached in that case is an authority for sustaining the judgment appealed from, and it should be affirmed, with costs.

Judgment and order reversed and new trial granted, with costs to appellant 4o abide event.  