66 Sias v. Consolidated Lighting Company. See Kellog v. Denver Consolidated Tramway Co., ante, p. 749, and extended note to the case of Tanner v. New York, N. H. & H. R. Co., ante, p. 766. Injury by fall of decayed pole; duty of inspection. The case of Western Union Telegraph Co. v. Tracy, 114 Fed. 282, was an action by a lineman against the telegraph company to recover for an injury sustained by reason of the breaking of a pole upon which he was working, which was decayed below the surface of the ground; the evidence was conflicting as to whether under the custom and practice of doing such work it was the duty of the lineman to determine for himself the safety of the poles, or whether it was the practice and business of the foreman to inspect the poles to determine their safety and that the lineman relied on the foreman's inspection. The court submitted this question of fact to the jury, and upon a verdict in favor of the plaintiff it was held that it must be accepted as established that the plaintiff was not under the alleged duty, and also that he was not guilty of any contributory negligence and was free from fault. The Circuit Court of Appeals sustained the holding of the district court, and, in so doing, said: That the case was not one which the court would have been warranted in taking from the jury, unless upon the ground either that inspection of the pole was not a part of the foreman's duty, or (if it was) that the defendant was not responsible for the foreman's failure to discharge that duty, is too clear for argument, and that these subjects were dealt with in a manner as favorable to the defendant as was at all possible we are entirely satisfied. It is not necessary to decide whether, by reason of the company's legal obligation to exercise ordinary care to provide a reasonably safe place and appliances for its employees, it was not unconditionally bound to look to the safety of the pole upon which the plaintiff was required to work; for it was not ruled that the defendant's responsibility was conclusively fixed by this general rule of law, but that it depended upon whether, as matter of fact, the custom in doing such work was for the foreman to inspect the poles, or for the linemen themselves to inspect them. Upon this question the testimony was conflicting, and it was submitted to the jury with the statement that if, according to the custom and practice in this kind of work, the duty of inspecting the poles is upon the lineman, and not upon the foreman, it would follow that the company here would not be responsible for this disaster.' In our opinion, the court, in thus holding that the company was but provisionally responsible, and in leaving it to the jury to find whether the practice was such as to make it absolutely so, went quite as far as could be justified in restriction of the defendant's liability." Upon the remaining point the law is well settled. The duty of inspection, if not that of the linemen,- and the jury has found that it was not,-was the positive duty of the company itself, and it was responsible for its nonperformance, notwithstanding the fact that it had engaged another, however competent, to perform it. Hugh v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994.” Brady v. Western Union Telegraph Co. BRADY V. WESTERN UNION TELEGRAPH CO. United States; Circuit Court of Appeals, Sixth Circuit. 1. INJURY TO LINEMAN BY BEING STRUCK WITH TIE WIRE; INCOMPETENCY OF FELLOW SERVANT.-The plaintiff was a lineman in the employ of the defendant and while engaged in fastening telegraph wires to glass insulators on a telegraph pole by means of a tie wire the telegraph wire was drawn tight by one of the plaintiff's fellow servants and the tie wire broke loose and struck the plaintiff in the eye. It was contended and attempted to be proved that the fellow servant was incompetent, and that his incompetency was known to the defendant. It was held, in the absence of positive proof as to whether it was the act of the alleged incompetent servant which caused the injury, that the plaintiff could not recover. In error to the Circuit Court of the United States for the Eastern District of Michigan. Decided February 10, 1902; reported 113 Fed. 909. Statement by WANTY, District Judge: The evidence in this case showed that the plaintiff was in the employ of the defendant as one of four linemen, whose business it was to carry the wire from the ground and fasten it by means of a tie wire to the glass insulators on the poles at a height of from 30 to 35 feet. It was shown that when the main wire was in position it was the duty of an employee, called a "jackman," to tighten it on receiving the proper signal from the linemen when they were ready. The manner of giving this signal was for the lineman farthest from the jackman to signal the lineman nearest to himself, who in turn passed the signal, when he was ready, to the second lineman, who, when he was prepared, signaled the lineman nearest to the jackman, from whom the jackman received the signal, which indicated that all of the linemen were ready to have the wire tightened, and upon that signal he tightened it. The evidence tended to show that the jackman was an unfit man for his position on account of having been addicted to the excessive use of intoxicating liquors for many years, and on account of his carelessness in tightening the wires on a number of occasions preceding the accident without signals from the lineman on the poles; and that the foreman, who had authority to hire and discharge the jackman, knew of his incompetency. The plaintiff on the morning of January 25, 1899, was tying the wire on the second pole from the jackman, and before he was ready, and before he had given any signal, and while reaching for his wrench, the wire was tightened, throwing into his face the tie wire, one end of which struck his eye and put Brady v. Western Union Telegraph Co. it out, to recover damages for which injury this action was begun. On the conclusion of the plaintiff's evidence the trial judge directed a verdict for the defendant, and to review the judgment on that verdict the case is brought here on writ of error. Edward McNamara (Harrison Geer and David E. Heineman, of counsel), for plaintiff in error. C. A. Kent, for defendant in error. Opinion by WANTY, District Judge: It is settled law in the Federal courts that the master owes the duty of using proper diligence in the employment of competent men to perform the duties for which they are engaged, and that he cannot escape this responsibility by delegating his duty to an agent who is a fellow servant of the injured employee; and after the employment of the servant it is the duty of the master to keep himself advised as to his fitness, so that an incompetent person may not continue in the service to endanger the lives and limbs of his fellow servants. Railroad Co. v. Henthorne, 19 C. C. A. 623, 73 Fed. 634, and the large number of cases cited in that opinion by Judge Taft. The evidence in this case, however, does not show that the negligence of this jackman caused the injury. The plaintiff testified that he had given no signal before the wire was pulled by the jackman. But it appears that the jackman should receive the signal from the lineman nearest to him, who occupied the pole between the plaintiff and the jackman. There is no evidence showing that the lineman next to the jackman had not transmitted the signal, although the evidence is clear that he had not received the signal from the plaintiff. It is possible that the jackman did not receive this signal, but it was necessary to show that he did not before the plaintiff could recover. If he did receive the signal, it was his duty to tighten the wire, as he did, and the defendant could not be charged with negligence. It is not sufficient to show that an accident has occurred, and that it may have been caused by the negligence of an incompetent servant, for whose employment and retention in his service the master is liable, but the fact must Brady v. Western Union Telegraph Co. be shown. In this case the court would not have been justified in allowing the jury to infer the absence of a signal when it could have been shown by positive proof if the signal had not been given. In Patton v. Railway Co., 179 U. S. 658-663, 21 Sup. Ct. 275, 277, 45 L. Ed. 361, the court says: "The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. Railway Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136. . . It is not sufficient for the employee to show that the employer may have been guilty of negligence, the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no more sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs." In the absence of proof of the tightening of this wire before receiving the proper signal, which was a necessary fact, the court would not have been justified in submitting the case to the jury, and it is not necessary to notice the other questions discussed by counsel at the hearing. The judgment is affirmed. Economy Light & Power Co. v. Sheridan. CONTACT WITH ELECTRIC WIRES OF ANOTHER COMPANY. ECONOMY LIGHT & POWER Co. v. SHERIDAN. Illinois; Supreme Court. 1. INJURY TO LINEMAN OF TELEPHONE COMPANY BY CONTACT WITH DEFECTIVELY INSULATED ELECTRIC LIGHT WIRE; PRESUMPTION OF NEGLIGENCE. The plaintiff's intestate was a lineman in the employ of a telephone company, and while engaged in his duties as such upon one of the poles of the telephone company received a shock of electricity, fell from the pole and was instantly killed. It appeared that the decedent was standing on the cross-arm of the pole upon which an electric light wire was strung, holding in his hands a telephone suspension wire which hung to the ground; the shoes of the decedent were wet. The electric light wire was defectively insulated and was charged with an electric current of about 1,100 volts pressure; while in this position the decedent was heard to scream as if in great pain and he fell from the pole to the ground. There was no direct proof that he came in contact with the electric wire. It was held that the facts and circumstances were suthcient to justify an inference that a contact with the electric wire was the cause of his death, and that it was, therefore, proper to submit the case to the jury. 2. HYPOTHETICAL QUESTION.-The facts and circumstances being sufficient to justify an inference that the electric light wire was defectively insulated and that the decedent came to his death by contact therewith, a hypothetical question assuming such facts was properly allowed. Appeal by defendant from a judgment of the Appellate Court affirming a judgment for the plaintiff. Decided December 16, 1902; reported 200 Ill. 439, 65 N. E. 1070. Garnsey & Knox, for appellant. Donahoe & McNaughton, for appellee. Opinion by Boggs, J.: The appellate court for the second district affirmed the judg ment entered in the Circuit Court of Will county in favor of the appellee administrator against the appellant company in the sum |