
    Mary Flood, Adm’rx, Resp’t, v. The Western Union Telegraph Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    Negligence—Telegraph Companies.
    Plaintiff’s intestate, who was employed by defendant, while replacing a peg in the outer .hole of one of the cross-arms of a telegraph pole, fell by reason of the breaking of the arm at the inner hole, and was injured so that he died. The arm where it broke was cross-grained and brittle. Held, that whether defendant, in the exercise of reasonable care, ought to have discovered and remedied the defect, and whether the intestate placed more of his weight on it than he should, were questions for the jury.
    Appeal from a judgment entered in Onondaga county on the 18th October, 1890, upon a verdict at the Onondaga circuit in favor of the plaintiff for $3,000; also from an order denying a motion on the minutes for a new trial.
    Jenny, Marshall & Ruger, for app’lt; Benedict & Thompson and Frank H. Hiscock, for resp’t.
   Merwin, J.

—The important question on this appeal is, whether the evidence is of such a character as to make a case to go to the jury. The plaintiff’s intestate on the 8th April, 1889, while in the discharge of his duties as lineman in the employ of defendant, fell from one of its telegraph poles at Baldwinsville, N. Y., and received injuries which caused his death in March, 1890. This pole was about twenty-two feet high, and attached to it near the top were three cross-arms eighteen to twenty inches apart, the top arm being about four feet long and the others about six feet. In the two lower arms, upon each side of the pole, two holes were bored which were one and one-half inches in diameter. The hole nearest to the pole was eight to ten inches from it, and the other about two feet nine inches. In these holes were' placed wooden pins, upon which were placed the glass insulators to which the wires were attached. The outer pin upon one side of the pole on the middle arm was broken and Flood was directed by his foreman to go up the pole and put in a new one. He proceeded to do so, and while he was in the act of attempting to remove the broken pin, the arm broke at the hole nearest the pole and he fell. This arm, according to some of the evidence, was two and three-quarters inches wide across the top, so that’ on each side of the hole there was a width of five-eighths of an inch. The pole and arm had been there from six to ten years, and there is evidence tending to show that the arm, where it broke, was “cross grained and brittle,” “ dozy.” The jury had a right to say that it broke by reason of its defective condition. And whether defendant, in the exercise of reasonable care, ought to have discovered and remedied the defect, was also a question for the jury.

But the defendant says it owed no duty to its employes in regard to this arm beyond seeing that it was sufficient to support the wires; that it was placed there only for that purpose, and that Flood, in supporting himself upon it, as he did to a certain extent, did what he had no right to do. It is quite apparent that in some cases of repairs to the arms it would be almost absolutely necessary to place some weight on the arm, and it was shown that it had long been customary to use the arm to some extent for that purpose, and this too to the knowledge of the agent of the company in charge and without objection and apparently without any rule against it. Under these circumstances it became a question of fact whether Flood placed more of his weight upon the arm than he had a right to, and whether the company performed its whole duty to its employes in regard to a proper inspection of the arm.

But the defendant says that Flood was in a position to Know as much about the condition of the arm as the company did. He was not there for the purpose of inspection. Aside from visible defects, he had a right to suppose that the company had done its duty. If Flood observed a defect, it was his duty to remedy it- or report it to the company. So it was in the case of Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y., 374, 378; 12 N. Y. State Rep., 9, where the trouble was a defective stake to a freight lumber car. Still the plaintiff, a brakeman on the train, was allowed', to recover for an injury occasioned by the breaking of the stake. Here, it should not be said (as matter of law that Flood should, have observed and guarded against the defects in the arm.

We think a case was made for disposition by the jury, and that the questions of negligence of the defendant and; contributory negligence of Flood were properly submitted.

Judgment and order affirmed, with costs.

Martin, J:, concurs.  