The disposition of this case, I think, ignores the proper theory applicable thereto. The cause of the falling of the" pole was its rotten condition below the surface of the ground. Plaintiffs right to recover does not rest on the negligence of Higgs, the foreman, as is assumed in the prevailing opinion, but on the duty of the defendant to have inspected the pole. (See McGuire v. Bell Telephone Co., 167 N. Y. 208; Riker v. New York, Ontario & Western Railway Co., 64 App. Div. 357.) Such duty was primarily with the defendant, and plaintiff had a right to assume that it had been performed. Defendant might have devolved that duty on Higgs or plaintiff or both, but that it. did Hot do so is undisputed and defendant does not and cannot claim to have done so. Hence the question of. assumption of risk by plaintiff does not arise. The pole was not being removed because it was worn out but because defendant was changing its system and the circumstance of removal did not; therefore, put plaintiff on his guard as to the hidden danger that caused the accident.
I advise an affirmance of the "judgment.
Judgment and order reversed as against the weight of evidence and-new trial granted, with costs to. appellant to abide event.