I regret that I find myself unable to concur with the other members of the court in this case. As I see it, the facts in this case present a defense which could have been made under the general issue; that is, that the death of the plaintiff's husband was due, not to the negligence of the city, but if due to the negligence of anyone, it was due to his own negligence. Thus on page 92 of the transcript, the City Manager testified, not only that he employed Mr. Kirkland to take charge of the light and water departments, which included the duty of looking after the poles and wires of the city, but in that connection the following questions and answers appear:
Q. State whether or not Mr. Kirkland had the duty of replacing a defective pole if one was found in the city?
A. Yes, he had full authority.
Q. Without coming back to you?
A. Yes, no use to come to me with a thing of that sort.
Q. During the time you were City Manager, or during the time Mr. Kirkland was employed by the city as superintendent, did the city buy any electric light poles?
A. Yes, we bought poles.
Q. Do you know whether or not Mr. Kirkland inspected those poles before they were bought or paid for by the city?
A. Yes, he inspected the poles usually before they were unloaded from the car.
Q. It was a part of his duty?
A. Yes, sir.
In Labatt on Master and Servant, Section 899, page 2392-93, it is said: *Page 779
"The duty of the master to furnish his servants with safe instrumentalities and appliances for the performance of their work applies to a foreman or superintendent or other vice-principal as well as to a servant without rank or title. Of course, if a vice-principal is injured because of dangerous conditions which it was his duty to provide against, there can be no recovery; but this is on the ground of contributory negligence."
See also Section 1259 of the same work, where it is said that:
"Where the material conditions which cause the injury were produced prior to the time of the accident, by the culpable acts or omissions of the servant himself, he cannot be permitted to maintain an action for damages."
Numerous cases are cited under this section. In 39 Corpus Juris, 855, it is said:
"Where by the terms of the employment or by reason of the nature of the work, the servant is charged with the duty of inspecting the machinery, appliances, or places of work which he is using, or with the duty of both inspecting and repairing them, he cannot recover for injuries sustained because of defects in such machinery or appliances or places of work if he neglects his duty in this regard, and if the defects are such as are discoverable by proper inspection."
A large number of cases are cited in support of that proposition.
Of course, if the defects are such as are not "discoverable by proper inspection," neither the employee upon whom the duty of inspection was placed, nor his employer, would be guilty of negligence. The rule defining the nature and extent of the master's obligation with respect to the condition of the agencies of his business may be stated in its most general form as follows: "The degree of care required *Page 780 of an employer in protecting his employees from injury is the adoption of all reasonable means and precautions to provide for the safety of his servants while in the performance of their work. What shall be deemed `due care' is to be `estimated on a consideration of the facts of each particular case.' It is `such care as reasonable and prudent men use under similar circumstances.'" Labatt on Master and Servant, Section 906. See also 18 R.C.L. Section 135.
As stated in the majority opinion, this action was brought under what is known as the hazardous occupation statute, Section 7058-7063, Comp. Gen. Laws. Section 7067 expressly provides:
"The persons, firms and corporations mentioned in Section 7058 shall not be liable in damages for injuries to their agents and employees, or for the death of such agents and employees, where same is done by their consent, or is caused by their own negligence."
I agree that the last clause above quoted, "caused by their own negligence" means that the negligence of the employee must be thesole proximate cause of his injury or death in order to absolve the employer for all liability in damages. The subsequent portion of the same statute shows this, because it provides that where the employer and employee are both at fault, there may be a recovery, but the damages shall be "diminished or increased by the jury in proportion to the amount of default attributable to both." Then follows a proviso which is not material here.
It is true that Mr. Kirkland, as superintendent, or foreman, could have ordered one of his lineman to ascend the pole in question, but I cannot see that because he chose to do it himself, that this had any effect on the city's liability. If the city knew or should have known of the defective condition of the pole, certainly its employee whose duty it *Page 781 was to inspect the poles and keep them in good condition for the city, and for the protection of its linemen, either knew or ought to have known of the condition of this particular pole, if anybody could have known it, and certainly he did not lose that knowledge merely because he chose to ascend the pole himself instead of ordering one of his men to do it.
While the evidence is not as strong and clear as it might be on the question as to whether or not it was Mr. Kirkland's duty to inspect the poles and keep them in safe condition for the use of the city's linemen, who were constantly compelled to ascend various poles at different times, I think the evidence along this line was sufficiently strong to authorize the lower court to make the order granting the new trial. It is well settled that when the Circuit Judge grants a new trial in a case that has been tried before him, this Court will not reverse such order where no abuse of discretion is shown, and I think there is no abuse here.
The legal principles above mentioned are supported by Atlantic Coast Line R. Co. v. Ryland,
