IDA B. GEER, as Sole Administratrix, etc., of GUY R. GEER, Deceased, Appellant,
NEW YORK AND PENNSYLVANIA TELEPHONE AND TELEGRAPH COMPANY, Respondent.
APPEAL by the plaintiff, Ida B. Geer, as sole administratrix, etc., from a judgment of the Supreme Court, entered in the office of the clerk of the county of Chemung on the 19th day of November, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Chemung Trial Term, and also from an order entered in said clerk's office on the same day, denying the plaintiff's motion for a new trial made upon the minutes.
Mortimer L. Sullivan, for the appellant.
Halsey Sayles, for the respondent.
The plaintiff's intestate had been in the employ of the defendant as repairer of its telephone line for about two years and nine months previous to his death, and was familiar with the details of repair and the construction of the defendant's line which ran through several counties bordering on the State of Pennsylvania.
In the city of Elmira the telephone wires are encased in a lead cable which is suspended from what is known as a messenger wire attached to poles. In the vicinity of the junction of John and High streets in that city this messenger wire is attached to the top of poles belonging to the electric light company, and below on a crossarm are six wires of the electric light company carrying various voltages of electricity. The messenger wire was reached by climbing the pole through these electric light wires.
On the morning of the accident the deceased was engaged in repairing the hangers which supported the cable from the messenger wire, and in the course of his work he detached one of the electric light wires to make a larger opening for him to climb through. While at work he suspended himself by a carriage or swing from the messenger wire, pulling himself along the wire to make such repairs as were necessary. At one point his knee came in contact with an electric light wire, shocking him so that he dropped his pliers. No serious result followed, and the pliers were regained and the deceased contmued his work, his helper by a rope holding the electric wire away from his person. After he had finished he ran himself back to a pole where he had separated the electric wires, and while standing on the crossarm which supported these wires, and when apparently reaching over to unbuckle his climbing spurs, he pitched forward through the electric light wires to the pavement, striking on his head, and from the injuries thus received, or, as is claimed by the plaintiff, from an electric shock received while standing on the crossarm, his death shortly occurred.
Six or eight inches from the crossarm, on a wire carrying a voltage sufficient to kill, there was noticed immediately after the accident a break in the insulation, one witness saying
that the wire looked bright and another that it looked dull. The hands of the deceased were red and blistered as though burned. There was no direct proof that the deceased died from an electric shock and his other injuries were sufficient to cause death. Just as he fell from the crossarm he did not have hold of the electric light wires with his hand but was grasping the messenger wire to support himself, and his feet on the crossarm apparently did not touch the electric wires or the glass pins upon which they were supported.
There was no proof that the decedent had previously repaired the wires on this particular portion of the line or that he was directed to repair them or that the defendant had any reason to believe that the electric light wires were not properly insulated.
Upon such state of facts the learned trial court nonsuited the plaintiff and we think properly.
The situation is wholly unlike that class of cases where a lineman is set to work by a superior amongst dangerous electric light wires of which he has no knowledge, without any warning that they exist. So far as the evidence discloses the decedent received no directions from the superintendent or any officer of the defendant to repair that portion of the line where the accident occurred, and it does not appear that the defendant knew he was working or intended to work on this portion of the line. The deceased had had two years' experience in the repairing of the defendant's telephone line and was furnished with a helper. He was entirely aware that he was working in close proximity to electric light wires which were charged with electricity for he received a shock while some distance from the pole where he stood when he fell, which caused him to let go the pliers with which he was working. On the very crossarm where he stood when he fell he had detached one of the electric light wires to make more room for him to let himself through between them. He did not come suddenly into a place of danger of which he had no knowledge, but could see and know the entire situation.
In Raab v. Hudson River Telephone Company (139 A.D. 286), upon which the appellant relies, a lineman was directed by his overseer to climb a ...