HECKERT v. CENTRAL DISTRICT & PRINTING TELEGRAPH CO., 206 F. 653

PRITCHARD, Circuit Judge (after stating the facts as ab®ve). While the record is silent as to the grounds Upon which the demurrer to the declaration was sustained, we gather from the contention of counsel that the learned judge who heard the case in the court below was of the opinion that the facts upon which plaintiff relied to sustain the charges of negligence against the defendant were innocent in themselves, and that had it not been for the negligent act of the city as well as that of the electric company plaintiff would not have sustained any injury.

In other words, that the negligent acts of the defendant complained of by the plaintiff were not the proximate cause of the injury; and further that the plaintiff assumed the risk incident to his employment. The first question that arises is whether the defendant, in permitting the city of Grafton the use of its poles, was charged with the duty of taking reasonable precaution to make its poles where its employés were required to work reasonably safe in view of their use by the city.

The plaintiff insists that the defendant was negligent in that it permitted a condition to exist which endangered the safety of its em-ployés; that it was the unsafe condition of the span wire on account of the failure to install a circuit breaker that resulted in the injury.

In considering this question the allegations contained in the declaration, with all reasonable inferences to be drawn therefrom, áre upon the demurrer to be treated as true: It was undoubtedly the duty of the defendant to provide a reasonably safe place for the em-ployés in which to work, and the test in this instance is whether the defendant failed to exercise due care as to the span wire at a time when it had knowledge as to existing conditions, or by the exercise of reasonable diligence could have known thereof.

It is true that the defendant is not chargeable with the negligence of theocity of Grafton or the electric company, but, if the defendant negligently permitted the city to use its poles without installing a circuit breaker and an injury resulted therefrom, the defendant cannot be exonerated because of the fact that the agency which was the cause of the injury was placed by another in close proximity to where the plaintiff was required to work.

It should be borne in mind that, among other things, it is alleged in the complaint that the city of Grafton obtained permission from the defendant company to attach its wires to the telephone poles, and, such being the case, it thereby became the dutjr of the defendant company to see that such steps were taken as were reasonably necessary, by requiring insulation or otherwise, to protect its employés.

The allegation is that the defendant was negligent in that it took no precaution to provide against the danger to which a highly charged exposed wire subjected its employés, and that the defendant knew or by due care would have known of the danger. We do not think it can be said that if the facts alleged are established by proof the court would be warranted in holding as a legal inference that they furnish no evidence of actionable negligence by the defendant.

On the contrary, it seems clear that proof of the knowledge of the conditions alleged or of such facts as imposed the duty to know them, and of the failure of' the master to guard against them, would raise an issue of negligence to be decided, by the jury. .,In the case of Barto v. Iowa Telephone Co., 126 Iowa, 241, 101 N. W. 876, 106 Am. St.

Rep. 347, this question was passed upon by that state.; the first syllabus being in the following language: “A telephone company which acquiesces in the use of its poles by an electric company is charged with the duty of seeing to it that the light wires do not expose its employes to unusual danger.” Also the second syllabus is to the effect that: “A telephone -company, .permitting the use of its poles for carrying electric light wires must use a degree of care for-the protection of its employés commensurate with the danger involved.” ' Also in

section 666a, p. 1073, 2 Joyce on Electricity, is to be found the following statement as to the rule in such cases: “* * where a telegraph or telephone company permits another electrical company, whose wires are used to convey a dangerous current of electricity, to use its poles, it is decided that it is the duty of the former company to see that they were not so used as to expose its employés to perils the risks of which were' not assumed in entering such hazardous employment.

So,. where a lineman in the employ of a telephone company which permitted an electric light company to attach wires to its poles was injured by a shock of. electricity from a defectively insulated light wire while on a telephone pole in the prosecution of his work, it was held that the questions of negligence were proper I v submitted to the jury and a verdict against the telephone company was affirmed. * * *” While the use of electricity for economic purposes is rapidly increasing, yet it must be admitted that it is one of the most dangerous agencies when not properly safeguarded by insulation or otherwise.

This is a fact that is.within the common knowledge of all, and as to which the defendant had full knowledge at the time it permitted the use of its poles by the electric company. Whether or not the defendant’s negligence was the proximate cause of the injury is for the jury. The defense that the injury resulted wholly or proximately from the negligence of another, and that it was not the defendant’s duty to anticipate and provide against the unlawful negligence of another, can be set up in the answer so as defendant can have the benefit of any such defense as the testimony on the trial may entitle him to.

The facts in this case are easily distinguished from the facts in the cases relied upon by counsel for defendant in error. Therefore we are of the opinion that they do not apply to the case at bar. After a careful consideration of the allegations contained in the declaration, we are of the opinion that the plaintiff has stated a good cause of action, and that the court below erred in sustaining the demurrer thereto. For the reasons hereinbefore stated, it follows that the judgment of the lower court must be reversed and the cause remanded for. further proceedings in accordance with the views herein expressed.

Reversed.