
    James B. Anglin, Respondent, v. American Construction and Trading Company, Appellant.
    Fourth Department,
    November, 1905.
    Negligence — injury to lineman by live wire — negligence of- fellow-servant.
    A lineman, who has been injured while stringing wires, by coming in contact with the elecfric light wire of another company which passed close to the telephone poles of the .defendant, upon which he was at work, and who is shown to have known of the presence of the electric, light wire and had the means and authority to shut off the current, cannot recover on the ground of his employer’s negligence. Under such circumstances it was his own duty or that of his fellow-servants to have shut off the current.
    
      Though' it was agreed between the plaintifí and the- foreman that the- latter should shut ofE the current, the foremap’s negligence in failing to do so is that of a fellow-servant. '
    Spring and Hiscock, JJV, dissented, with memorandum
    Appeal by .the . defendant, the American Construction and. Trading Company, from a judgment of the Supreme Court in-favor of the plaintiff, entered in the office of the cleric of the county of Seneca on the 28th'day of. February, 1905, upon the verdict of a jury for $5,000, and also from. an order entered in said' 'clerk’s office on the same day, deiiying the defendant’s motion for a new trial made upon, the minutes.
    The action was commenced on the 8th day of January^ 1903,,to recover damages for injuries alleged to have been caused solely through the negligence of the defendant.
    
      William A. Sutherland,, for .the appellant.
    
      J. N. Hammond, for the respondent.
   McLennan, P, J. :

The plaintiff sustained the injuries for which he complains on the ,29th day of April, 1902, while .in defendant’s employ, engaged in stringing wires, upon its poles, by coming in contact with an electric light wire owned and maintained by the Seneca Falls Electric Light Company, which passed close to the telephone poles of the defendant. The negligence of the defendant, it is alleged, consisted, first, in erecting its poles near trees, the branches of which so obscured the electric light wires that their presence could not be known or discovered by\the plaintiff by the exercise of reasonable diligence; and, second, because the defendant faffed ,to cut off the electric Current from the electric light company’s wire before the plaintiff was set to work upon the poles of the defendant.

It appears without contradiction that the plaintiff had had large experience in. doing the work in which he was engaged at the time of the accident; he was also fully acquainted with the locus in quo. By the plaintiff’s own. testimony it is conclusively shown that he knew that the wires of the electric light company ran in close proximity to the pole Upon which he was at Work. He also knew the danger of coming in contact with such wires. Immediately upon going upon the pole he knew of the presence of branches upon the trees adjacent to such pole, and the extent to which they obstructed a view of the wire in question. In other words, he had knowledge of the exact situation as it existed, except as he testifies he did not know that the current had not been shut off from the wire of the electric light company. And the failure to shut such current off is practically the only negligence now urged against the defendant.

It appears that the plaintiff, with other employees of the defendant, was engaged in putting up wires for it under the direction of a competent foreman; that they all knew perfectly well of a simple method of shutting off the electric light current, and that any one of such employees, including the plaintiff, had a right to shut off such current when working upon poles of the defendant in close proximity to-wires carrying such current. The plaintiff and other of defendant’s employees had frequently before the accident shut off such current and thereby made injury from coming in contact with the wires carrying the same impossible. At .the time of the accident it was undoubtedly understood by the plaintiff that the foreman had shut off the electric light current, and undoubtedly at this particular' time it was his duty as between him and the plaintiff to have done so, but the failure of the foreman in that regard, under the circumstances, was the negligence of the coemployee for which the defendant is not liable, hio fault is.found with the method of doing the work adopted by the defendant. It is not suggested that any other or different rules for the safety of its employees should have been adopted. A competent foreman with a sufficient number of men were sent by the defendant to a locality with which all were familiar, to string wires upon its poles. All knew that electric light wires were in close proximity. All knew the danger occasioned thereby and knew how to eliminate all danger, viz., by turning off the electric light current, provision for which had been made by the defendant, and so that any one of such employees could do so at will. As between themselves, we may assume that it was agreed or understood that the foreman should perform such duty and .that because of his neglect in that regard the accident happened. We fail to discover how, even upon that hypothesis, the plaintiff can recover. The foreman, and because of whose neglect in not shutting off the electric current or in warning the plaintiff that it had not been shut off before directing him. to go upon the pole in question, the accident happened, was a co employee of the plaintiff, notwithstanding he occupied the position of foreman. (Northern Pacific R. R. Co. v. Peterson, 162 U. S. 346 ; Keenan v. N. Y., L. E. & W. R. R. Co., 145 N. Y. 190; Barringer v. Delaware & Hudson Canal Co., 19 Hun, 216.)

Having concluded that the defendant was not guilty of actionable negligence under the- circumstances disclosed in this case, we deem it unnecessary to determine any of the other questions involved. It follows that the judgment and order should be reversed and a new Trial granted, with costs to appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.

All concurred, except Spring,. J., who dissented in a memorandum in which Hiscock, J., concurred.

Spring, J, (dissenting):

Cadwallader was the superintendent in general charge and Shoemaker was foreman of the gang to which plaintiff belonged. The latter testified that whenever he had been at work before the electric current was turned off, and that both Cadwallader and Shoemaker -assured him that it would he turned off when the men Were at work. He had a right to rely on this assurance.

It was the defendant’s duty to provide a safe place for the plaintiff to work. By delegating this duty to another it was not relieved from liability resulting from the failure to meet the obligation which it owed to -the plaintiff.

The proof also shows that whenever one of the men shut off the Current it was by the express direction of the foreman. It was not done by any of the men unless directed to do so; of course, the plaintiff knew that the electric wire was strung, but he lacked the essential notice that it was charged with electricity. He believed' as he had been assured that it was safe.

I think the authorities cited in the prevailing opinion and in the brief of the appellant’s counsel are not in point. In Northern Pacific R. R. Co. v. Peterson (162 U. S. 346) it did not involve the question of a safe place. In that case the foreman of a section gang was riding on a handcar with the plaintiff and other workmen and suddenly applied the brakes and the plaintiff was injured. The court held the foreman was a fellow-servant wjth the plaintiff. It explicitly noted the distinction as to the primary duties imposed upon the master. At page 353 the court recites that among the duties which the master owes is that of providing a reasonably safe place for the servants to work in. It then adds: “ If instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect to that other, which, in such case, is not the neglect of a fellow-servant, no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform as such.” ‘ Again, at page 358, the opinion distinctly states that the neglect of the foreman was not of that character for which the master was responsible, not being the neglect of a duty owed by a master to his servants.

Again, in Keenan v. N. Y., L. E. & W. R. R. Co. (145 N. Y. 190) the question of safe place was not involved at all.

I think the judgment should be affirmed.

Hiscock, J., concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. -  