
    Mary Flood, Adm'rx, Resp’t, v. The Western Union Tel. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    Negligence—Telegraph company—Liability to employees.
    Plaintiffs intestate, an employee of 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. Held, that defendant was not liable, as it did not insure the safety of its employees; the cross arms were not intended to bear the whole weight of any person; they were duly inspected when purchased, and. plaintiff's intestate had the opportunity to inspect the arm, and should-have done so before bearing his weight upon it.
    (Andrews, Gray and O’Brien, JJ., dissent.)
    • Appeal from judgment of the supreme court, general term,, fourth department, affirming judgment entered upon a verdict in. favor of plaintiff.
    
      Louis Marshall, for app’lt; A. T. Benedict, for resp’t
    
      
       Reversing 39 St. Rep., 674.
    
   Earl, Ch. J.

The plaintiff seeks to enforce liability upon the-defendant for the death of the intestate because of its negligence-as to the cross arm which broke under his weight. We have carefully read and weighed the evidence contained in this record,, and are unable to find any showing culpable negligence" adequate to sustain this judgment.

The defendant did not insure the safety of its employees. It-was bound only to use reasonable and ordinary care to provide, for them a safe place to do their work, and they assumed the; ordinary risks of the employment in which they were engaged. The cross arms on telegraph poles, manifestly, from their usual size and strength, are not intended to bear the whole weight of any person, and yet the evidence shows that persons engaged in fixing them and placing wires upon them do sometimes rest their weight upon them. It must always be a hazardous venture for' a. man to sit on the outer end of one of these cross arms engaged in. pounding near the end with a hammer. When the arm is new and perfect, this may be done with safety. But it must always, be attended with great danger, and it is unnecessary, as the work, can be done without resting the whole weight upon the arm.

There was no negligence in furnishing and putting up this arm. originally. It was of the material and of the size and apparent, strength and safety then in use by all telegraph companies.. And so far as appears such arms have been found adequate; for every purpose. For some time before the accident the defendant had been using larger and stronger arms to carry heavier wires, and only for that purpose. There was a system of inspection for the arms when purchased, and it does not. appear that there was anything in the external appearance of this arm when new which indicated any defect or weakness, or that there was any defect therein discernible by any ordinary inspection.

This arm had been in use for about six years, and during all that time had perfectly answered its purpose. There was no> proof showing how long such an arm ought to last or be used. The defendant had a system of inspection which appears to have been all that was practicable. Its inspectors went along the line-of telegraph poles and wires and carefully looked at them and. tried the poles to see if they were still strong and adequate. They were provided with arms so that if they discovered any that were insufficient they could replace them. They were not expected to-■climb up every pole and examine the arms thereon. Such an inspection would be manifestly impracticable and unnecessary. The linemen all discharge their duties in the day time. They have frequent occasion to climb the poles and work about the arms, and obviously they are the persons who are expected to see the condition of the arms and if they find them insufficient to replace them, or to report the fact. It is the obvious duty of every lineman before going upon one of these arms, many feet above the ■earth, to inspect it for his own safety.

The intestate had been in the employment of the defendant for ■several years, part of the time as foreman of a gang of men engaged in inspecting the defendants lines, and part of the time as .a lineman engaged in the ordinary duties pertaining to that employment He had all the opportunity which any inspector could have to know the condition of this arm, having frequently inspected that portion of the defendant’s line where this arm was. He saw it when be went upon it, and careful inspection was the first thing then suggested to him.' He knew that he was in a place of danger, and thus was bound before resting his weight upon the arm to examine it to see if it was sound and probably .adequate to support him. He knew precisely how the defendant inspected its poles and the arms on them and that it was not its custom to cause the arms on the poles to be inspected by :some one climbing up the poles, and hence as to him carelessness in not inspecting the arms cannot be attributed to it. He knew that no one knew the condition of the arm which broke better than he did, and no one in fact knew better than he its sufficiency to bear his weight. H he gave the matter -a thought, he knew that he must rely upon his own judgment in placing his weight upon the arm; but before placing his weight thereon he ought to inspect it and see if it was sound and strong enough to hold him, and that he had no right to rely upon the judgment or inspection of any other person. Under such circumstances it is impossible to perceive how the death of the intestate -can be charged to the defendant Leary v. B. & A. R. R. Co., 139 Mass., 580; Goodnow v. Walpole Emery Mills, 146 id,, 261. If the intestate was not careless in placing his weight upon that arm how can it be said that the defendant was careless in permitting him to do so ?

Without a more extended notice here of the evidence, giving the plaintiff the benefit of all the facts proved, and all the reasonable inferences from them, we think she failed to sustain the cause of action alleged by her.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

Finch, Peckham and Maynard, JJ., concur. Andrews, Gray and O’Brien, JJ., dissent.  