Mary Horan, as Administratrix, etc., of David Horan, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant

Mary Horan, as Administratrix, etc., of David Horan, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant. Second Department, January 28, 1916. Negligence—gas and electricity — death of lineman from electric shock while engaged in installing protectors — action under Federal Employers’ Liability Act — failure to use rubber gloves — use of unsuitable ladder —proximate cause — assumption of risk. In an action under the Federal Employers’ Liability Act to recover for the death of an experienced lineman, resulting from an electric shock by contact with one of the wires of defendant’s signal system on which he was engaged in installing new safety devices, the case was submitted to the jury on the following specifications of negligence claimed to be actionable under the statute: (a) That a ladder furnished was insecure, insufficient and unsafe; (b) that the defendant omitted to furnish proper rubber gloves; (c) that, even if the jury found that proper gloves were furnished by the employer, the foreman was negligent in permitting the linemen to work without rubber gloves and in permitting them to wear linen or canvas gloves. Held, that the evidence was insufficient to establish liability under any of the above specifications. A foreman is not bound to watch an experienced lineman to discover whether he is using proper gloves which the company has supplied for his protection and upon discovery to insist upon his using them. Had there been evidence that the ladder was unsuitable and that it was the proximate cause of the injury, its unfitness was obvious to the intestate, and a refusal to charge that he assumed the risk of using it was reversible error. Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of March, 1915, on the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 25th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 27th day of February, 1915, granting plaintiff an extra allowance. James W. Carpenter \Charles M. Sheafe, Jr., with him on the brief], for the appellant. Thomas J. O’Neill [Leonard F. Fish with him on the brief], for the respondent. [MAJORITY — Stapleton, J.:] Stapleton, J.: The plaintiff’s intestate was killed by electricity in the State of Connecticut on the 6th day of April, 1914, about ten o’clock in the forenoon. He was in defendant’s employment and was engaged in installing new safety devices, called protectors, designed to sustain defendant’s signal wires in the event of a break. The protectors are composed of metal shafts and iron caps. They are attached to the wires by two bolts and set over the insulators. The wires are used to signal trains operated by the defendant as a common carrier by railroad while engaged in commerce between several States. The deceased worked in an electrical construction gang composed of McMillan, the foreman; Welden, the groundman and lineman’s helper; Mooney and the deceased, linemen. McMillan worked on the next pole, about 300 feet away, grounding the wires; Welden worked on the ground; Mooney and deceased on a metal arm of a latticed steel strut, which arm is 35 feet above a concrete base resting upon the ground. The strut has two arms, on the lower of which wires are strung. The pole pin wire (that is, the one nearest the pole) was grounded and de-energized. It was the wire upon which the linemen were to work first. The linemen ascended the pole by the lattice work to the arm. They afterwards hoisted, by rope, a ladder and a pig (also called a shield). The ladder was a hook ladder about six or seven feet long. The hooks were metal; the rungs, wood. The ladder was attached to and suspended from the lower arm, and was steadied by a rope fastened to the lower rung and to a pier on the ground. It was used by the men to stand on when they worked on the end wire. The pig is a piece of slit rubber hose which was to be placed as a shield over the wire on which the men worked. That side of the pole which is nearer the track is known as the track side, and the opposite side is known as the field side. The pin or wire which is nearer the pole is known as the pole pin; the one further away as the end pin. There are two signal wires on the field side of the pole. It is essential to the signal system that one of these wires be always energized. The wires were uninsulated. When ungrounded the wires carry 2,200 volts of electricity. This voltage is lethal. After the protectors were affixed to the pole pin, or wire, on the field side of the pole, the decedent proceeded to get ready to work on the end pin or wire. The ladder was adjusted between the two wires, suspended from the lower arm. The pig was on the wire which had been de-energized. The method was then to signal McMillan, located on the next strut, to ground the end pin or wire by an appliance known as a ground stick, and to wait until he signaled that he had done so before going near it. For work on the pole pin the ladder is unnecessary. The decedent was shocked by contact with the outer wire before it was grounded. He was wearing linen or canvas gloves. There is evidence from which it is inferable that deceased was standing on the ladder at the time of the contact. He was an experienced lineman. McMillan is dead. Mooney and Welden were witnesses. No other person was present at the time of the casualty. The personal representative of the deceased employee brought this action against his employer for damages for the benefit of his surviving widow and child, basing her action upon the act relating to. the liability of common carriers by railroad to their employees in certain cases, enacted by Congress and approved April 22, 1908, as amended April 5,- 1910 (35 U. S. Stat. at Large, 65, chap. 149; 36 id. 291, chap. 143; Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146. See Deal v. Coal & Coke Ry. Co., 215 Fed. Rep. 285.) The jury gave her a verdict. It is from the judgment entered upon that verdict, and from an order denying defendant’s motion to set aside the verdict, and for a new trial, that this appeal is taken. The case was submitted to the jury on three specifications of negligence asserted to be actionable under the act cited: (a) The ladder furnished was insecure, insufficient and unsafe; (b) the defendant omitted to furnish proper rubber gloves; (c) even if the jury found that proper rubber gloves were furnished by the employer, the foreman, defendant’s employee, was negligent in permitting the linemen to work without rubber gloves and in permitting them to wear linen or canvas gloves, which are unprotective. We have critically searched this record in vain for facts or reasonable inferences which would authorize the jury in finding liability under any one of these specifications. Indeed, all the evidence is the other way. As to specification “ c,” we may also say: We know no rule of law which requires the foreman of an employer to keep watch upon an experienced lineman to discover whether he is using proper gloves which the company supplied for the lineman’s protection, and, upon discovery, to insist upon the lineman’s using them. (See Depirro v. Robins Co., 210 N. Y. 93, 95; Davis v. Gas Engine & Power Co., 148 App. Div. 791, 792.) Had there been evidence that the ladder was unsuitable and that it was the proximate cause of the injury, its unfitness was obvious to the intestate, an experienced lineman, and he assumed the risk of using it. It was, therefore, reversible error to refuse so to charge on request. (Seaboard Air Line v. Horton, 233 U. S. 492; Toledo, St. L. & W. R. R. Co. v. Slavin, 236 id. 454; Collelli v. Turner, 215 N. Y. 675.) There was an order granting plaintiff an extra allowance, which is involved in the appeal and falls with the judgment. The judgment and orders should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Carr, Rich and Putnam, JJ., concurred. Judgment and orders reversed and new trial granted, costs to abide the event.