
    Peter Gibbons, Respondent, v. Brush Electric Illuminating Company, Appellant.
    
      Negligence — employee of an electric light company injured by the fall, the screws being rotten, of a frame and hood which he was removing from a pole —negligence of a fellow-servant—assuming the risks of an employment.
    
    A lineman employed for several years by an electric illuminating company in generally repairing the lines for illumination, and in the removal of lamps, hoods and frames, who, while engaged in taking' down a lamp and" lowering the hood from the top of a pole some twenty-four feet high, is injured in consequence of the frame and hood falling with him to the ground, the screws by which they were fastened to the pole being rotten, rusty and in bad condition, ■ has no cause of action against the company.
    
      The act of the foreman, who had ascended the pole “and examined the thing before the work was started,” in directing the employee to do the work, was the act of a fellow-servant, who, not being shown to be incompetent to do the work, was negligent, if at all, because of the manner in which he directed it to be done, and in exposing the employee to unnecessary danger while doing it.
    
      Semble, that the employee engaged in such work was bound to assume that he might be disabled and to govern his actions accordingly.
    . Appeal by the defendant, the Brush Electric Illuminating Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of May, 1898, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 13th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Albert Stickney, for the appellant.
    
      Harold Nathan, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages sustained by the plaintiff as the. result of a fall from the top of one of the electric light poles maintained by the defendant. It appears from the evidence that for eighteen years prior to the happening of the accident above mentioned the plaintiff had been engaged as a lineman, having been employed by the defendant for several years, and by other corn- • pañíes before that. The duties of a lineman were the stringing of wires, setting and removing poles, putting in instruments, helping to put them in order, rpaldng repairs, removing defective appliances and substituting new ones, putting up and taking down lamps, and putting up and taking down frames and hoods, and fixing anything that was out of order.

It appeared that in 1892 one of the poles upon the defendant’s line was. found to be in a faulty condition and one of the defendant’s workmen was directed to reset it. On examination, finding the screws attaching the frame of the lantern to the cap at the top of the pole to he rotten, he lowered the pole, frame and hood together by a block and fall. Thé frame he carried to the defendant’s office for the inspection of the assistant superintendent, who examined the same and found the screws to be eaten away and not capable of the strain they were called upon to hold. ■ He then made a report to the main office, but what were the contents of . such report nowhere ; appears, except that, the. assistant superintendent testified that, he reported to the defendant the condition of affairs he then discovered. He afterwards sent a man to inspect the whole line, and subsequently made a written report to the defendant; but what were; the results of such inspection or-the nature- of his report thereon is not stated.-

In September, 1895, a frame at Twenty-third street, similar to the one in question fell, and the screws were found by one Mandeville, a foreman of the defendant, to be in a rusty condition,. The defendant'thereupon set.to work to get out patterns and to have new frames made and to change all the lamps upon the poles from Fourteenth to Thirty-fourth street, which were of similar construction.

On the morning of the 3.1st of March, 1896, the plaintiff and other workmen in the employ of the defendant were sent out with Mandeville, as foreman, to take down ¿11 the frames, hoods and lamps on the- defendant’s line along Broadway, from Fourteenth to Thirty-fourth street, and' to put up. new frames, hoods' and lamps. The gang had with them all the appliances for the doing of this work, consisting of shear poles* ropes, etc., and also some: new frames to ; substitute for the old ones which ' they were ordered to takei down. The gang went to the pole situated at Broadway and Thirty-fourth street, and Mandeville, the foreman, went up the pole “ and examined the thing before the work Was started,”' although he testifies ' that from such 'examination he could not tell whether, the screws or bolts were in bad condition or not, and he further testifies that nobody ever told him that they were defective. But it appears from the evidence that he had the same knowledge that anybody else had on the .subject,, namely, what. was. derived from the falling ■ -of the lamp, in Twenty-third street. After having made such examination, Mandeville instructed the plaintiff to ascend the pole, to take the lamp, down and lower the hood, informing him at the same time that he would get the shear leg ready before taking down the frame. The pole in question was’about twenty-four féét high and! equipped. with steps on each side. On the top sat the frame, a cap going over the top of the pole which held the hood and lamp. The weight of this structure was from 350 to 400 pounds. The plaintiff, in accordance with the foreman’s instructions, ascended the pole, removed the lamp from the frame and lowered it. This done, with his left foot on one of the steps of the pole, he put his right leg through the frame into the space left vacant by the removal of the lamp, resting (as he claims) the weight of his body wholly on the cap at the top of the pole, and his leg touching all around the pole where he was working. In this attitude, and using both hands, he unscrewed the bolts on the Broadway side of the hood, then switching his body over a little and leaning back to get at the bolt over his head, he commenced to remove the bolts fastening the other side of the hood to the frame. He had removed two of such bolts when the frame gave way and he fell to the ground, the hood and part of the’frame falling with him. He testified that the fall was occasioned by the screws attaching the frame to the cap breaking or pulling off; but it appeared upon cross-examination that this was a mere conclusion, as it was founded upon the fact that he could not see any other way in which it could come down. The screws were examined by the foreman and also by two police officers present, and were found to be rotten, rusty and in bad condition.

Upon this proof the' case was submitted to the jury, who found a verdict in favor of the plaintiff, and from the judgment thereupon entered and from an order denying a motion for a new trial this appeal is taken.

Under these circumstances, we fail to find any ground upon which -the liability of the defendant can be based. It is undoubtedly the duty of an employer to furnish to his employee proper appliances with which to work and a safe place in which to carry on the work; but this rule is necessarily qualified by the nature of the work to be done and the circumstances under which it must be performed. It appears from the evidence in this case that the defendant furnished all the appliances necessary to take these frames down with perfect safety -— appliances with which all the other frames upon the line were removed. The foreman was competent to do the work, and if any negligence occurred it was in the manner in which he directed the work to be done and the situation in which he directed the plaintiff to put himself in so doing. This under all the authorities ■was clearly the negligence of a fellow-servant. (Cullen v. Norton, 126 N. Y. 5.) If the foreman proceeded to do this work in a manner which exposed the plaintiff to unnecessary danger, that was not the negligence of the defendant but of the foreman, who was a fellow workman of the plaintiff. This is. the principle upon which the case of Cullen v. Norton, above cited, was decided.

But it is urged that neither the foreman nor the plaintiff had any knowledge in regard to the insecure condition of the screws upon the frame in question. It is to be observed that, according to the report, Mandeville had all the knowledge that anybody else had in regard to the condition of these screws.' He knew of the falling of the lamp in. Twenty-third street. He knew that new frames had been ’made and were being substituted because of what was discovered upon the falling of that lamp. He himself went up and examined the frame.in question and then proceeded to take it down in the manner above described. It is true that he says he could not "tell from examination .whether these screws were rusty or not; but it is quite difficult to understand what he went up for if he knew that he could not find out anything as to their condition, asihe must" have been as well aware of that fact before he ascended the pole as afterwards. It was only after such examination that he ordered the plaintiff to ascend the pole and remove the frame in sections; It was because, of this direction that the accident happened to the plaintiff; precisely the same as in the case of Cullen v. Norton (supra).' It was the direction of the superintendent to the deceased in that case to go to work in the neighborhood of an undischarged blast which went off and killed the workman.

The plaintiff knew that these old lamps were being taken down and new ones substituted. He had no reason to suppose that this work was being done as a mere pastime, but must have known that it was in pursuance .of some intelligent purpose. In the case of Arnold v. Delaware & Hudson Canal Co. (125 N. Y. 15), where one of the servants of the defendant company was injured in coupling cars, such injury being caused by the defective condition of one of the couplings, it was held that that afforded no ground of liability 'upon the part of the company, inasmuch as it was the duty of the plaintiff to handle defective as well, as uninjured cars. The coupling was directed to be done in order that the disabled car might be set aside for repairs; and the court held that whether the plaintiff knew of that defect or not was immaterial; that one of .the purposes of his employment was to handle disabled cars, and that if he did not know what its condition was he was bound to assume that it might be disabled, and govern his actions accordingly. To the same effect is McCosker v. Long Island R. R. Co. (84 N. Y. 79).

Applying the principle of these cases to the case at bar, the business of the plaintiff was to assist in repairing these lines for illumination and in the removal of the lamps, hoods and frames; and when he was sent to take" down these frames and substitute others, he was, to use the language of the case of Arnold v. Delaware & Hudson Canal Co. (supra), bound to assume that they might be disabled, and to govern his actions accordingly. Under this rule there seems to be no foundation for a charge of negligence against the defendant, it having done all that the law required", namely, the furnishing of proper appliances and competent workmen for the performance of the work. There does not seem, therefore, to have been any proof of defendant’s negligence, and it was error to submit that question to the jury.

We think that the judgment and order appealed from should'be reversed and a new trial ordered, with costs to appellant to abide the event.

Barrett, Rumsey, Patterson and O’Brien, JJ., concurred.

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