This is a suit under the Employers' Liability Act (Chap. 36 of the Laws of 1909) in which the plaintiff has recovered damages against the *Page 386 defendant corporation for having negligently caused the death of her husband while in its employ as a lineman on Sunday, the 27th day of June, 1909. The defendant's power plant is situated between Sidney, in Delaware county, and Unadilla in Otsego county and supplies electric light and power to those villages and also to the village of Bainbridge. On the day of the accident which caused the death of plaintiff's intestate he was sent out as one of a number of men in the employ of the defendant to change the location of the wires on the Bainbridge line from old poles to new ones; and in order that this work might be done with safety the electric current was turned off from the Bainbridge line. This was done by the engineer in the power house pursuant to instructions from Mr. Edwin O. Allen, the superintendent of the plant, who told the engineer that the men were about to work on the Bainbridge line. The engineer testified that there was a rule of the defendant to the effect that when the current was turned off under such circumstances it was never to be turned on until word had been received directly from the men working upon the line "that they were through and off the line."
The work appears to have proceeded in safety until about half-past four on Sunday afternoon. At this time one Homer Robinson, an employee of the defendant at the power house, went on duty there looking after the dynamos, fires and boilers. He was told by an assistant in the boiler room when he arrived "that the boys were working on the Bainbridge;" and he went to work cleaning fires and wheeling coal. The residence of the superintendent was situated one hundred and fifty feet north of the power house on the other side of the highway. While Robinson was wheeling in coal his attention was attracted by a call from Mr. Allen, the superintendent, who was standing upon the veranda of his house and "had his arm above his head pointing to a fixture." Robinson's testimony was taken by commission and does *Page 387 not disclose what was the fixture thus mentioned or what the significance of Mr. Allen's gesture. He does not undertake to state what Mr. Allen said, but declares that he did not hear the words which Mr. Allen used; although he evidently understood them to have some reference to the telephone in the power house, the bell of which was ringing steadily at the time. He testifies that he said to Mr. Allen, "they phone," to which Mr. Allen nodded his head. Robinson thereupon went into the office, took down the receiver and said "hello," but nobody answered. He stopped the ringing of the telephone bell, went out and moved the switch which turned the current on to the Bainbridge line. The plaintiff's intestate was then engaged in splicing one of the high voltage wires that carried this current, and he was instantly killed by the shock which he received.
Notwithstanding his inability to hear the words used by Mr. Allen, Robinson testifies that he understood them to be a direction to turn on the current. He concedes that he did not hear the telephone bell ringing in the office until Mr. Allen called to him. It is proper to consider Mr. Allen's testimony as to what he actually said in view of Robinson's failure to distinguish the language used. Mr. Allen testifies that when he heard the telephone gong ringing he went out on to his porch and shouted to Robinson, "Homer, 'tend to your telephone." According to his testimony all that Robinson did in response was to look up and start for the plant. After the accident was discovered Robinson told Mr. Allen that he understood him to say to put on the Bainbridge current, but Mr. Allen declared that he did not know how Robinson came to say this, as he had said nothing to him about putting on the current.
In order to sustain a recovery by the plaintiff in this case under the Employers' Liability Act it is necessary to show that the superintendent was negligent either in directing the current to be turned on or in doing some act *Page 388 which he could reasonably anticipate would be construed as such a direction. It does not seem to us that the evidence in this case viewed in the most favorable light for the plaintiff will support the inference that Mr. Allen was negligent in either respect. How a simple call to an employee in words which that employee was unable to distinguish at the time and of course is unable now to recall can be held to amount to a direction to turn on an electric current it is difficult to imagine. If we amplify the evidence in behalf of the plaintiff by Mr. Allen's own statement as to the words which he used the case is no stronger; for it is impossible to conceive how any reasonable person could have supposed that a direction to attend to a telephone which was ringing insistently could be tortured into an instruction to turn on a dangerous electric current before being satisfied that the men were off the Bainbridge line; or, indeed, to turn it on at all. There is absolutely no evidence to sustain the verdict in this case on the issue which was submitted to the jury, to wit, the question whether the superintendent did in fact direct the turning on of the current. Nor was there any evidence to sustain a finding against the defendant upon the issue first submitted but afterwards withdrawn by the trial judge; that is to say, the question whether the acts of the superintendent were such as he ought, in the exercise of reasonable care, to have believed might be misunderstood by Robinson. There was a complete failure of proof in either aspect of the case. Upon the evidence the accident appears to have been entirely due to the gross negligence of a fellow-servant for which the law does not render the master liable.
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., WERNER, CHASE, COLLIN and HOGAN, JJ., concur; HISCOCK, J., concurs in result.
Judgment reversed, etc. *Page 389