
    
      8178
    
    JONES v. POSTAL TELEGRAPH CABLE CO.
    1. Removal of Causes—Joist Touts.—Refusal to remove case into Federal Court on ground' of diverse citizenship and 'because the complaint does not allege a joint liability sustained, for the reason that the affidavits show the family of one of the defendants resides in this State, and his business is entirely within the State, and the failure of an inspector of telegraph poles to detect and remove a defective pole makes a joint tort between the inspector and the telegraph company for. an injury caused-to an employee by reason of the defective pole.
    3. Jurisdiction—Waiver.—Where two defendants, one a foreign corporation and the other an individual, resident of another county than the one in which the suit is brought, answer the complaint on the ■merits without reservation1, they waive the objection to the jurisdiction of the person.
    3. Assumption of Risks—-Issues.—-Where a telegraph company has two systems of pole inspection—one by a gang with full equipments to fully test—the other by rule requiring the employee to test before climbing—whether the lineman assumed the entire risk in climbing a pole apparently safe -after inspection is a question that depends on the rules1 and practices of the master and the circumstances of each case, and is usually for the jury.
    4. Telegraph -Companies—‘Lineman—Contributory Negligence.—In view of all the evidence in this case the 'Court cannot say -as matter of law that the lineman- was guilty of contributory negligence in climbing- a defective pole.
    Before Princr, J., Aiken, April, 1911.
    Affirmed.
    Action- by Joseph A. Jones against Postal- Telegraph-Cable Company and M. A. Ray. Defendants appeal.
    
      Messrs. C. B. Dunbar and /. B. Salley, for appellants,
    cite: Did the Aiken Common Pleas have jurisdiction: 25 S. C. 385; 28 S. C. 313; 22 S. C. 276; 87 & C. 101; 23 Cyc. 683, 697; 87 S. C. 322; 74 S. C. 441; 28 S. C. 315. Was the cfse removable: 84 S. C. 546; 77 S. C. 103; 73 S. C. 17ft; 115 Ga. 1022; 160 U. S- 583; 111 U. S. 637; 107 Fed. R. 762; 160 U. S. 556; 79 S..C. 204; 347 Fed. 87; 14S Fed., 75; 150 Fed. 805; 174 Fed. R. 709; 204 U. S 176; 200 US. 206; 215 U. S. 308. No cause of action stated against Ray: A Fed. Stat. Ann. 312; 34 Cyc. 125ft; 125 Fed. 958; 151 Fed. 896; 174 Fed, 170; 98 Fed. 2; 144 U. S. 53-3; 103 Fed. R. 515; 186 Fed. R. 541; 151 Fed). R. 914; 167 Fed. R. 680; 182 Fed. R. 276; 71'S. C. 57; 84 S. C. 550. No allegation of joint and concurrent negligence: 177 Fed. R. 572; 115 Ga. 1022; 190 U. S. 428; 179 Fed. 413; 124 Fed. 983- 73 Fed. 637; 65 S. C. 333, 342; 68 S. C. 60; 69 S. C. 4; 72 S. C. 465; 73 S. C. 175; 75 S. C. 293; 76 S. C. 5; 84 S. C. 547. ' Safe place is only separable controversy alleged: 177 Fed. R. 573; 103 Fed. R. 513; 168 EedrR. 1002; 182 Fed. R. 276. No proof o.f negligence: 26-Cyc. 1136-42; 72 S.- C. 101; 75 S. C. 103. Plaintiff is guilty of contributory negligence: 77 S. C. 328; 56 S. C. 95; 71 S. C. 53; 82 S. C. 363; 87 S. C. 449. Plaintiff should have kepi pole safe: 8 Am. Elec. Cas. 751; 72 S. C. 102; 77 S. C. 432; 26 Cyc. 1253-4. Plaintiff performed his work in obviously dangerous way : 86 S. C. 69; 4 S't. Ry. R. 517; 89 S. C. 505. He violated defendant’s rules: 85 S. C. 471; 82 S. C. 548. He assumed risk of defective pole: Jones on Tel., sec. 198; 70 A. S. R. 245; 61 A. S. R. 62; 8 Am. Elec. Cas. 749, 787; 131 Fed. R. 844; 4 Am. Elec. Cas. 403; 15 A. & E. Ann. Cas. 599; 116 N. W. 983; 82 S. C. 360; 211 U. S. 459. Judge should construe the rules: 69 S. C. 22; 66 S. C. 22. Plaintiff assumed the risk with notice: 131 Fed. R. 844; 70 S. C. 250; 61 S. C. 477; 80 S. C. 238; 87 S. C. 213; 86 S. C. 235; 88 S. C. 235; 211 U. S. 459. Coiwt should not charge a man will live a certain number of years: 87 S. C. 330; 63 S. C. 336; 78 S. C. 364; 87 S. C. 330.
    
      Messrs. Hendersons, contra,
    cite: Petition for removal not in time: 30 Fed. R. 881; First Dest. Fed. Prac., secs. 108, 532; 151 U. S. 687; 138 U. S. 298; 113 U'. S. 84; 111 U. S. 7701; 117 U. S. 365. Suit properly laid in Aiken: 179 U. S. 135; 73 S. C. 173; 72 S. C. 465; 87 S. C. 546; 200 U. S. 206; 194 U. S. 136; 215 U. S. 308; 220 U. S. 426. Jury should say if gang should inspect: Joyce on Elec. R., sec. 657; 21 R. R. A. (N. S.) 775; 167 N. Y. 208; 114 Fed. 282; 128 Fed. 272; 73 Mich. 268; 60 N. J. R. 306; 178 N. Y. 588; 22 R. I. 131; 82 S. C. 382. Charge as to mortuary tables: 330. Contributory negligence: 56 S. C. 95.
    April 9, 1912.
   The opinion' of the Court was delivered by

Mr. Justice Woods.

The main questions' involved in this appeal from a judgment for damages for personal injuries, are: (1) Were the defendants entitled to atn order from the Circuit Judge for the removal of the cause to the Circuit Court of the United States)? (2) Was the Circuit Court without jurisdiction) to hear the action) against the defendant, Postal Telegraph Company, because it was a foreign 'corporation' ? ( 8 ) Should a nonsuit have been ordered on the ground that the plaintiff had undertaken the duty of inspecting the defective pole, by the fall of which, he was injured, and, therefore, was himself responsible for the failure to discover and remedy the defect, or onj the ground that the evidence showed 'beyond dispute that 'he was guilty of contributory negligence in ascending- a pole manifestly unsafe?

The plaintiff thus sets out in the second and third paragraphs of his complaint 'the delicts of the 'defendant and the manner ins which he was injured thereby: “That at the times hereinafter mentioned, and especially during' the year 1904-, and in the spring of said year, the defendant, M. A. Ray, was in the employment of the said Postal Telegraph-Cable Company, as an inspector of the lime generally of said company between the city of Augusta, Georgia, and the city of Charleston, South Carolina, said line passing through: the county of Ailcern .and following' a general direction! from Augusta, Georgia, to Charleston, South Carolina, along the Postal roads going by White Pond, in the county of Aiken, at the point hereinafter referred to, and that it was the habit and custom, and practice of the said' defendant company to use an inspector, such as the defendant, M. A. Ray, with a force of hands and implements used for the1 said purpose, to inspect the line of said telegraph company along the route as aforesaid, and that said M. A. Ray, as such inspector of said company, with a gang of hands, in the early part of the spring of 1904:, inspected said lines, and had with, him such implements' and material whereby he could finally ascertain whether a telegraph pole used for the purpose of suspending the wires used by said company, was sound and all right below the ground to any distance, but that said M. A. Ray, .as inspector of said company for said purposes, notwithstanding' he inspected said line, with said gang of hands, .and could have ascertained whether anything was the matter with the telegraph -pote of said defendant company, herer inafter referred to, negligently failed to inspect the same .and to ascertain whether it was rotten below the surface of •the ground.

‘‘That the plaintiff herein, Joseph A. Jones, some time previous to the 14th day of June, 1904, was' employed by the defendant company as a workman, and that on' said day ■he was employed by said company to go along the line of -poles and wire of said company in the county of Aiken, and State aforesaid, by himself, with a vehicle solely in his ■charge, and with such implements as he had, to find out if .anything was wrong- in- said line and to repair the same. That he proceeded in the performance of his work, and1 that -when he reached a point at a pole of said company situate about a mile and a half west of White Pond, oo the Southern Railway, he noticed that there was a joint of wire that had to be straightened out and changed, and for said purpose he had to' mount said' pole, and that with such -instruments as he had and- which were furnished him by the defendant company, he ascended said pole and attended to his business in connection with the wire, and as he was descending the pole -the same fell to- the ground and hi-S' leg was, caught under said pole and broken above the knee in three- places, and- his hip joint was dislocated and he was wounded and bruised in ■ other parts of his body. -That said pole fell 'because it was íptt-en 'below the ground and unfit for a lineman to climb upupom. That deponent u-sed every care -and caution,- he could in testing said pole with- his pike and otherwise, and1 noticed -nothing -whatsoever a-s to- any defects therein; whereas, -the inspection of the pole afterwards showed that it had been rotten, down in the ground for a long time, which defect could have 'been ascertained by the inspector, Mr. Ray, and his gang oif hands, who passed over the road in- their capacity representing the defendant company not very long before the time of the injury to 'this plaintiff; and this plaintiff alleges and charges that the cause of his1 injury was the negligence of the defendant company and the negligence of its inspector, M. A. Ray, in not ascertaining that' said pole was rotten so that it was: ai menace toi life and limb, and in not having the same removed and a new pole replaced., or old pole reset.”

Judge Sease refused a motion for the removal of the cause to- ‘tire Circuit Court of the United1 States, made on the averment, supported by affidavits', that the defendant, Postal Telegraph Company, was a foreign corp'oration, that the defendant, Ray, was not a resident of • this State, but of the State of - North Carolina, and that even if Ray should be held to be a resident of this State, the complaint alleged no joint liability of the two defendants to the plaintiff. Counsel stipulated that the appeal from.the order of Judge Sease ‘Should be heard along with any appeal, that might be taken on the merits, after trial of the cause. The record contains an order of Judge Brawley, United-States District Judge, remanding the cause from the.Circuit Court of ¡the United States to> the Court of Common Pleas for Aiken county. Passing by the point that.there was a, failure to- make the motion- for removal with-in the time pre-.scribed by the Federal Statute, and -the -effect to be given to Judge Brawley’s order, and considering the application for removal on its merits, we think -the defendants failed,.to show grounds- for removal.

■The effort to: prove that Ray was a nonresident failed, for i't -appears, from the- affidavits -that bis family residence was-in- the city of Florence, and that his business- was entirely in this State.

The position that the complaint does not allege a joint liability of the Postal Telegraph Company and Ray is also untenable. The allegation is -that the Postal Telegraph Company, failed in its duty to the plaintiff in allowing a defective' pole to remain on. its line, which plaintiff’s, duty required him. to climb, and that this failure toi supply a safe place to work was due to. the joint delict :of the telegraph company and Ray in failing toi make a reasonably careful inspection of the pole. The telegraph company, it is true, could not delegate its duty of supplying a reasonably safe place to work to its -employee, Ray, so as. to relieve itself of that duty; but it does not follow that Ray was not individually liable for injury resulting to his fellow servant from any failure on his part to make a reasonably careful inspection. The telegraph company owed the duty to the plaintiff to use reasonable care in inspecting its poles, so as to supply its servants with a safe place to work, and the defendant, Ray, owed his fellow servants the. duty of protecting them from injury by making a reasonably careful inspection. The failure to malee a reasonably careful inspection1 would be, therefore, a breadhi of duty of both1 defendants for which they would be jointly liable. Able v. Southern Ry., 73 S. C. 173, 52 S. E. 962; Barber v. Southern Ry., 76 S. C. 4, 56 S. E. 540; Garter v. Atlantic C. L. Ry., 84 S. C. 546, 66 S. E. 997; Chesapeake etc. Ry. v. Dixon, 179 U. S. 131, 45 L. Ed. 123; Thompson v. Ala. G. S. Railway Co., 200 U. S. 206, 50 L. Ed. 441; Ill. Cen. Ry. v. Shoegog, 215 U. S. 308, 54 L. Ed. 208; Chicago Ry. Co. v. Willard, 220 U. S. 426, 55 L. Ed. 521.

There is no foundation for the position that the Court of Common Pleas for Aikeni county had norjurisdiction to' try the action because the defendant, Postal Telegraph Company, was a foreign corporation and the defendant, Ray, was a resident of Elorence county. Both the defendants appeared generally and' answered on the merits, without reservation, in the suit brought in Aiken county, and' made no' motion to' transfer the cause to Florence county. 'Thus- they waived’ objection to1 the jurisdiction of the Count of Common Pleas for Aikeni county. Jenkins v. Atlantic C. L. Ry. Co., 84 S. C. 343, 16 S. E. 409.

On: the merits' of the case 'the defendants' by a number of exceptions bring up the question in) different forms) that the Circuit Judge should have granted a nonsuit, or should have charged the jury that the plaintiff could not recover, (1) because he had assumed 'the duty of inspecting the pole, and', therefore, could) not complain of an injury caused by a defect which he should have discovered; (3) because, even if the defendant wa® negligent, the evidence showed beyond dispute that 'tire plaintiff was' guilty of contributory negligence. If the evidence had admitted of no other,inference than that the plaintiff had assumed' the entire responsibility of inspection and h'adi suffered' injury from his own delict in failing to discover tine defect, then he could not recover. Keys v. Winnsboro Granite Co., 72 S. C. 97, 51 S. E. 549; Green v. Catawba Power Co., 77 S. C. 426, 58 S. E. 147; Quick v. Millfort Mill Co., 78 S. C. 472. This rule has been applied in discussing the duties of linesmen of telegraph poles in McGuire v. Bell Tel. Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437; Britton v. Central etc. Tel. Co., 131 Fed. 844; McIsaac v. Northampton E. S. Co., 172 Mass. 89, 51 N. E. 524; Lynch v. Traction Co., 153 Mich., 174, 116 N. W. 983, 21 L. R. A. 775, and note, and other cases. But it is manifest that the inflexible rule can not be -laid down that in all cases linemen are charged with the entire responsibility for due inspection, of poles before going upon them, for 'the responsibility would depend on the rules and practice of the companies which they serve, the knowledge of the linemen of such rules and practice, the experience of the linemen, and perhaps other circumstances. So in Berley v. Western U. Tel. Co., 82 S. C. 360, 64 S. E. 157, it was held that the evidence made a question for the jury to decide whether the lineman knew or should have known of the rule forbidding- him to climb a pole without inspection, and whether be was negligent in not making such .an examination as would have discovered the defect.

The evidence in this case shows that on1 the line between Augusta. Georgia, and Charleston, South 'Carolina, the defendant company had two -systems o-f inspection and repair. The defendant, M. A. Ray, as -foreman, with a force1 of men equipped with all necessary implements, was charged with the duty of traveling- along the line and discovering and repairing all defects in poles and wires so- as to keep the line safe and efficient. The second method or system was that in; which -the plaintiff was employed. He was required to go along the lines -alone in a conveyance, and his duty, as he describes it, was that of “keeping up the lines, clearing away -the undergrowth, replacing bad joints, or any other work I could do on the lines-.” A rule of the company contained this admonition: “Linemen are especially cautioned: to ascertain before climbing -a pole, whether it is safe, by inspecting its condition ('both above and below the ground) and its- guying and bracing.” This evidence admits- of no other inference than itbat the plaintiff had assumed such- duties- in keeping the line- in repair that he was bound to use reasonable ca're in examining a pole before ascending it. ■ He- thus- describes -his precautions and the work he undertook to- do: “I tied my te’am by the road and I got -out and taken; my pike pole and tested a pole on the corner, which was leaning- towards the woods-. Wires on that pole were very -slack. I dug around the pole with a shovel and examined it as 'best I could without digging it entirely up. I dug about a foot and a 'half from the top of the ground. I -went down about a foot and- a half below the solid ground and I tried to break it, then I tried to cut into it with a shovel and it seemed to be perfectly sound.

“How did you test it with your pike? Sticking the pike in the pole and tried to 'break it with my strength, and then I tested it with- a shovel. I put in an anchor on- the roadside, in order to make sure—the wires ora each side of the pole had some 'bad joints ini them:. There was two. In order to. take out the joints and put ira a good piece of wire, I let the wires down off the pole to the ground with a grab line, that is a rope. After the wires1 were let down I started to come down,”

■Although it turned out 'that the pole- fell as the plaintiff, ■began his descent, and that it was very old, and a mere shell, yet ini the face of this evidence the Court .could not say that the evidence left no doubt that the plaintiff had not used' due care ini making his inspection, and that, ■therefore, even if the negligente of the defendant be assumed, he was guilty of contributory, negligence. It is true that the pole was leaning, and that the plaintiff ought to have known that the weight of a man ora such a pole would subject it to a great strain; but in view of this evidence as to the tests he made of its strength, and condition, the Court cannot say- that the entire evidence -admitted of no other inference than that the bad condition or insecurity of . the pole was so. obvious that the plaintiff was guilty of contributory negligence in ascending it.

Nor can it be said that the plaintiff assumed the entire risk of the sufficiency of the inspection, when he was. not charged with the entire responsibility of keeping the poles in repair. The contract of employment1 'contemplated that the plaintiff should take certain precautions, for 'his own safety, and the plaintiff assumed1 the risks of any defects which he would have discovered' by due care in the examination which it was his duty to. make; but the contract of .employment also ■contemplated that the defendant should -take certain precautions as a means of providing for the safety of plaintiff’s place of labor by the inspection and work of Ray and. his force; and the plaintiff did not assume the risk of a lack of due care ora the part of this, independent agency of the defendant. Ray testifying for the defendant, admitted that if 'his force of linemen, had not been negligent in its inspection, the defect in this pole would have been discovered and remedied, and the accident prevented. It is, therefore, manifest that the -evidence made an) issue of fact whether the injury resulted from- the failure of t)he plaintiff to perform' the duty he had undertaken.—the risk o-f- the due performance of which he assumed—or from a failure of the defendants and their independent agents to perform the duty of inspection and repair they had assumed in order that plaintiff might have a safe place to wo-rk.

AV-e shall not discuss in detail the- numerous exceptions to the charge on the questions of contributory negligence and assumption of risk, since all of them obviously hinge on the law as we have endeavored- to state it, 'and the charge of the Circuit Judge was- in accordance with our view of the law.

The Circuit Judge charged the jury- that they were to decide, as issues arising out of 'the -evidence', whether the plaintiff had notice of the rule requiring linemen to- examine poles before ascending them, and whether the plaintiff bad assumed any d-uty of inspecting the poles as well as the w-ires. The defendant complains' of this charge ¡because the -evidence admitted of no other inference than that the plaintiff did have notice of the rule, and that it was his duty to- inspect the poles. Inasmuch, as the -plaintiff expressly admitted that he was familiar with the rule, and that it was his duty to inspect the pole before ascending -i-t, and thait be did inspect it, it is impossible that the jury co-uld have found otherwise.

The other -exceptions to the charge impute- errors which reference to the context will show so- clearly were not committed that particular discussion of them is not necessary.

It is the judgment of this. Court that the judgment of th-e Circuit Court he affirmed.

Only Messrs. Chiee Justice Gary and Jtjstice Hydrick participate in this opinion and concur.  