Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-09
COURT DECISIONS.
DicEsTED BY w. q. MARTIN.
Exclusively for virginian-Piiot)
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
s. B. TEL. & TELEGRAPH CO. v
CLEMENTS.

s. B. TEL. & TELEGRAPH CO. ".
CLEMENTS.
Supreme Court of Appeals of Virginia.
January is, 1900.
CONTRIBUTORS NEGLIGENCE IS
NOT ESTABLISHED, BUT is A
QUESTION FOR THE JURY.
WHERE AN EMPLOYEE OF A
TELEPHONE COMPANY, BY d.
RECTION OF ITS FOREMAN,
CLIMBS A POLE MARKED DE-
FECTIVE.
THE JURY CAN INFER MENTAL
SUFFERING WHEN THERE HAS
BEEN A PAINFUL BODILY IN
JURY.
Clements, q lineman Of defendant
company, by direction of It's foreman
climbed a telephone pole of the com
pany, which had been reported rotten
and was marked defective, and the pole
fell and injured him. He brought this
suit and recovered a Judgment in the
lower court. and the company appealed
me court, after setting for the facts
anu the instruction given, says:
1t is claimed that these instructions
were erroneous. because 1t appears
from the evidence that Clements took
service With the company knowing that
1t was its custom to continue to use
Its poles after they had been condemned
and until regular repairs were made
ana new poles put in at stated inter-
Vals or time. and he continued in it's
service without objection.
1t appears from the evidence, how
ever, or there is at least evidence tend
ing to prove. that Clements did not
know the unsafe condition of the pole
which caused the accident; on the con-
trary the tendency of the proof is to
show that he was careful and observant
to guard himself against accident In
the quotation from his testimony which
has been given. 1t appears that there
was nothing in the condition of the
pole except the ozark which had been
placed upon 1t bN the inspectors to in
dlcnte It's unsafe condition. Il so han
pened that the pole was supported by
wires strung parallel with the street
and by other wires which ran into an
alley and served as guys to retain 1t in
an upright position. Therefore, when
Clements assembled the pole 1t seemed
TO be safe. In his own language: "It
was perfectly firm as any pole 1 ever
close any cause for immediate appre-
hension, and there was nothing to warn
MIN of danger UNTIL upon cutting the
wire on the end of the transverse arm
the pole instantly fell. The company
knew the unsafe condition of its poles
Upon It's record was the entry: s.Two
rotten poles on Madison street between
Main and Cary" with this knowledge
1t sent men out with instructions to
climb these poles and,remove the wires.
y Us t1Se That there was mark upon
the poles. which. 1t may be conceded
Clements saw or should have seen. in
the exercise of reasonable care for his
own protection, but 1t also true that the
mark relied upon to give him notice Of
the condition of the pole meant no
more than that, in the ordinary course
u should be repaired or replaced, and
hot that II was the source of immedi-
Rte ar Imminent danger In climbing
the pole thus marked he only did what
1t was customary for others to do. what
he himself had done on frequent oc-
casions and what the company expect
ca ana required of its employees. Tn
uer such circumstances. we cannot say
that contributory negligence is CON
clusiyeiy established, but are or onin-
ION that 1t was a proper cnse for tho
jury.
What we have said Is sufficient an
swer to dispose of all the instructions
except the 4th. This instruction is OBJ
jected to on the ground that there &c
no evidence that the plaintiff suffered
mentally in any way whatever. We
think that where the proof shows that
man is thrown from telephone pole
to the ground, is injured in his arm
hip and back, and is made sick and
nervous, has to be taken home in an
ambulance. and Is unable to sit up in
bed for three or four days. that the
jury would be warranted in the infer
ence that his condition was attended by
some degree Of mental suffering AZ
frmed.