New York & New Jersey Telephone Co. v. Speicher

The opinion of the court was delivered by Magie, J.

The only assignments of error which need be considered are those based on the exceptions to the refusals to nonsuit and to direct a verdict for defendant below. These present the question whether the evidence established a liability to Speicher on the part of the telephone company.

*24 It was conceded that there was no contractual relation between them, for he was the employe of the city and not of the telephone company.

Proof that the pole from which Speicher fell had been erected by the telephone company or was owned by it, and that it was maintained in a public street upon condition that the topmost cross-bar should be used by the city to carry the fire alarm wires, might justify an inference that the telephone company invited the city’s agents to use the pole and that cross-bar in stringing, repairing and caring for those wires. The argument for Speicher assumes that there was such evidence. I find it difficult to discover it in the bills of exception, for those show that the pole was erected by another company, and fail to show that the telephone company have any property or possessory right in said £>ole, except that they support their wires on the lower two cross-bars.

But if it be assumed that the telephone company is shown by the evidence to have sustained to Speicher the relation that one sustains to another who has been invited to come upon his premises, the duty devolving upon the former is only to take reasonable care that what the other is to use is reasonably safe for such use. If the visitor is invited to use a path, for example, his inviter will not be liable for an injury sustained by the visitor at other places to which he has gone without invitation. Phillips v. Library Company, 26 Vroom 307 .

Assuming that the telephone company invited Speicher to mount and descend the pole in discharging his duties to the city, in regard to its wires, what did it invite him to make use of in going up and coming down ? Clearly, it would be held to the duty of reasonable care as to the strength and fitness of the pole to carry the wires and the workman engaged in arranging and repairing them.

But the sole object of the cross-bars is to carry the wires. He who maintains the cr.oss-bars does it for that purpose, and his duty is thus limited. It is not perceived how his duty in that respect is extended by proof that linemen, in climbing, usually lay hold of and rely upon the cross-bars for support, *25 in whole or in part. That custom is not, in this case, brought home to the knowledge of the telephone company, but if it were it could not operate to compel them to make cross-bars intended for one purpose sufficiently strong for another purpose for which they were never intended. No invitation to use the cross-bars can be deemed to be extended to the lineman. When, therefore, a lineman makes use of a cross-bar in climbing, he steps beyond the limit of his invitation, and he who invited him to climb by the pole has no liability for any resulting injury.

It results that it was error to permit the jury to consider whether the telephone company took reasonable care to have the cross-bar safe, and there should have been a direction for a verdict for the company, on the ground that it owed no duty to Speicher in respect to the cross-bar.

The judgment must be reversed.