
    Fred C. Trimbey, Respondent, v. Central New York Telephone and Telegraph Company, Appellant.
    Fourth Department,
    November 15, 1910.
    Master and servant — negligence—injury while cutting limb from tree — facts not justifying recovery.
    A servant who while engaged in cutting limbs from a tree, and while standing with one foot upon the tree and the other upon a nearby telephone pole which he had used instead of a ladder to ascend the tree, was injured by reason of the fact that the limb when severed swung around and broke the pole, which showed no outward defects, cannot recover by reason of the master’s failure to furnish a ladder or to inspect the pole.
    This, because the result would have been the same if a ladder had been used, and because the failure to inspect was not the cause of the accident, in that the pole was sufficiently strong to serve as a ladder, and the master was not bound to inspect it to see whether it would withstand the impact of a falling limb.
    Appeal by the defendant, the Central New York Telephone and Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 28th day of October, 1909, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 30th day of October, 1909, denying the defendant’s motion for a new trial made upon the minutes,
    
      
      Miller & Finche and James F. Hubbell, for the appellant.
    
      Higbee & Lay [M. W. Lay of conusel], for the respondent.
   Williams, J.:

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

The action was for negligence. Several of defendant’s employees were engaged in cutting limbs from a tree. The plaintiff was up in the tree, standing with one foot on the tree and the other on a pole near by. When the limb was so far severed as to permit it to fall down, it swung around, struck the pole, broke it and caused the plaintiff to fall to the ground and to suffer injury. The pole did not belong to the defendant. It was at the' time out of use as a telegraph or telephone pole. Instead of using a ladder to go up into the tree, and to put one foot upon while sawing off the limb, plaintiff went up the pole which had steps upon it, and was as convenient to ascend as a ladder. The pole was defective inside, but the defect was not noticeable outside, and could only have been discovered by inspection. It was strong enough to support the plaintiff while climbing it and standing upon it in sawing. It broke not because of plaintiff’s weight, but because the limb, six or seven feet long and sixteen inches through, struck it in falling. Apparently a ladder would have been broken or knocked down the same as the pole was if a ladder had been used instead of the pole.

The acts of negligence submitted to the jury were the failure to furnish a ladder and a failure to inspect the pole. And the recovery must be upheld, if at all, upon these grounds. There were ropes attached to the limb which were operated by the men on the ground. When the branch was nearly severed the plaintiff stopped sawing, and the men on the ground, by means of the ropes, pulled the branch down.

1 am unable to see how the failure to have a ladder to use at the time was the cause of the accident. There was a ladder there at one time, but the pole seemed to be regarded as better to use under the circumstances than a ladder. It served every use that a ladder would have served without any accident or injury. The jury was not justified in concluding that the accident would have been avoided by the usé of a ladder rather than the pole. The limb wag heavy and would have disturbed the ladder, so as to throw the plaintiff down just as readily as it did the pole. The trouble was not in the use of the pole rather than a ladder to rest a foot upon. It was unsafe for the plaintiff to rest his foot on either a pole or a ladder when the limb was being pulled down with the ropes. He should have stood entirely upon the tree or, if he could not do that, he should have come down to the ground before the limb was pulled down. Nor was a failure to make an inspection of the pole the cause of the accident. It was sound, as it appeared upon a casual view of it, and it was only used in place of a ladder anyway. It served that purpose fully, stood up under plaintiff’s weight in going up into the tree and while sawing the limb. There was no duty to inspect it in order to determine whether it would stand the blow from the heavy limb if it should swing around as it did from the opposite side of the tree and strike it.

These are the only two grounds of negligence submitted to the jury, and neither of them was a sufficient basis for charging the defendant with liability for the accident in question.

The judgment and order should be reversed, therefore, upon the ground that no negligence of defendant was established causing the accident and injury.

I do not deem it necessary to consider the other questions raised on the appeal.

All concurred.

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