I am unable to bring myself to the view that the Telephone Company owed the plaintiff, an employee of the Telegraph Company, the duty of maintaining in a sound condition the cross-arm which belonged to the Light Company. The Telephone Company owned the pole on which it leased a designated space to the Light Company; on the space so leased to it the latter attached a cross-arm. This cross-arm was not only owned and maintained by the Light Company, but was thereafter within its sole possession and control. The Telephone Company had no control or supervision over it in any way either by contract or custom. As to this the evidence is all one way.
The theory of the majority opinion is that the alleged duty just referred to grew out of the relation which the owner of the pole, as lessor, bore to its several lessees, who occupied designated spaces on it for their cross-arms; that is, that the alleged duty is one implied by law. In support of such theory there is an attempt made to draw an analogy between the leasing of spaces on a pole, as in the case, and the leasing of apartments in a building where the landlord provides one common stairway for the use of all of his tenants as the sole means of ingress and egress to and from their several apartments. In the latter case the landlord not only owns *Page 1031 the stairway, but he retains the possession and control of it. From that fact and the further fact that the use of the stairway by all of his tenants is necessary to the enjoyment of the estates severally demised to them, the duty on the part of the landlord to maintain such stairway in a safe condition arises as an implication of law. In the instant case the lessor did not own the cross-arms, neither did it have possession of them. Nor were the cross-arms in whole, or in part, the means or instrumentality provided by the lessor for its tenants to go from the ground up to the spaces severally leased to them and down again. In other words it was not necessary for linemen to use the cross-arms in going up and coming down the pole. The cross-arms were placed on the pole for no such purpose. Such use as was made of them by linemen in ascending the pole was voluntarily made and for their own convenience. It further appears from uncontradicted evidence that the cross-arms did not constitute obstructions which had to be climbed over; all of them were attached to the same side of the pole; on the other side, termed by the witnesses the "back side," they offered no interference to one in climbing the pole or in getting down. The analogy invoked fails at every point. The liability of the Telephone Company asserted in the majority opinion seems to me unwarranted under any tenable legal theory.
I concur in the results reached in the opinion as to the liability of the two other appellants, and also as to theremittitur required as a condition for the affirmance of the judgment as against them. Henwood, J., concurs in these views.