RAYMOND P. AHEARN vs. BOSTON ELEVATED RAILWAY COMPANY.

HAMMOND, J. The plaintiff was an experienced lineman, and at the time he was struck by the car was in the employ of a telegraph company and was climbing one of its poles, which was situated between two tracks belonging to the defendant on Blue Hill Avenue. He was one of a gang of men consisting of "three climbers, including himself, two ground men, and the boss," who were engaged in putting wires on the poles. The process of doing this is thus described by the plaintiff: "The coils of wire . . . [are] . . . set on reels and . . . they [the men] hitch a running or hand line to these and take that running line and throw it over the pole and pull the wire through and stay on the pole till the wire gets by." There were two sets of the defendant's tracks, one the inbound track and one the outbound track; and the telegraph poles were substantially in the middle of the space between the two tracks. The pole upon which the plaintiff was at the time of the accident was not straight, but for several feet from the surface of the ground inclined toward the inbound track so that the distance between it and the extreme projection of the roof of a car passing on that track was only one foot and four inches, which is eight and a half inches less than it would have been if the pole had been straight.

As to the manner in which the accident occurred the plaintiff testified that McDonald the boss gave him a hand line and told him to ascend the pole; that just before this the hand line was on the track and, a car coming along, the plaintiff had to get it off the track; that after that car had passed McDonald gave him the order to ascend; that he (the plaintiff) took the hand line, glanced "down the street and did not see anything or any car that he thought would do any damage," and then walked

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across and started to climb the pole; that he had on "spurs, belt, pliers and cutters," and in his hands the hand line; that with the assistance of his spurs he reached the first step, which was nine or ten feet from the ground; that in going up the pole he used his hands "to balance some"; that he went up on the side nearest the inbound track, with his back to the track; that the other men were working upon the same side; that as he went up he was hit by the car; that at that time he had caught hold of the first step with one hand and of the second step, which was eighteen inches higher up, with the other; that when he was hit his left hand was knocked off, then the right, and he dropped to the ground in a faint.

The evidence showed that the day was clear, the road straight, and that there was nothing to obstruct the view for a half mile in the direction from which the car came. Upon cross-examination the plaintiff testified that before he started to ascend the pole.he saw the car which afterwards struck him, coming towards him; that it then looked about one hundred and fifty feet away, and appeared to be going ten miles an hour; that before he started up the pole he did not notice that the pole slanted toward the track upon which the car was coming, although there was nothing to prevent him from seeing that fact. He further testified that after he had looked and seen this car one hundred and fifty feet away McDonald passed him the line, as before stated; that after he received the order to go up the pole and had stuck his spurs into it, he did not look to see where the car was although he knew that it might be much closer to him than when he first saw it; that before he started up the pole he realized that when he got on to the pole it would be impossible for him to look and see "where the car was at all"; that one can stand still on a pole and look out to one side, and that it is only when actually ascending a pole that one cannot look out at the side; that if he had stopped anywhere on the way up he could have looked either way, but he did not do it because it was not customary.

It further appeared that the part of the car with which he came in contact was the roof, and that in going up the pole one's buttocks and hips are thrown out "a little bit" at every step.

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It is urged by the defendant that the plaintiff was not in the exercise of due care inasmuch as the evidence shows that with full knowledge that a car was approaching he went up on the side of the pole nearest the track upon which the car was coming, and took no precaution whatever to protect himself from injury; and that therefore the case should stand with cases like Quinn v. Boston Elevated Railway, 188 Mass. 473. The answer of the plaintiff however is that he relied upon McDonald to warn him if the car should come dangerously near, and that he had a right thus to rely upon him. Upon this point the case is close. Upon an inspection of the evidence, however, we are satisfied that the jury were warranted in finding that in view of the various articles with which the plaintiff was incumbered at the time he was on the pole, the nature of the work he was expected to do, the close attention necessary to its proper execution, and the possibility of injury from passing cars, it was reasonably necessary for the protection of the lineman and for the proper dispatch of the business that some one should be on the ground to notify the lineman of approaching danger; and further, that in this case the plaintiff did rely and had the right to rely upon McDonald to notify the car to stop and to give him notice of any impending peril while he was on the pole. Upon such findings the case is clearly distinguishable from cases like Quinn v. Boston Elevated Railway, ubi supra, and more closely resembles Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532, and similar cases. And it is immaterial upon the question of the due care of the plaintiff whether this warning was to be given by some party other than the defendant and its servants. The question of the due care of the plaintiff was properly submitted to the jury.

There also was evidence of the negligence of the defendant. [Note p354]

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We pass to the questions arising upon the admissibility of evidence. The answer of the plaintiff when asked why he went up on the side of the pole "on which . . . [he] . . . did," that it "was the safe side to go," must be understood not as a statement by the witness that it was the safe side, but that he thought at the time that it was, and hence as a reason for his action it was admissible. Whitman v. Boston Elevated Railway, 181 Mass. 138. McCrohan v. Davison, 187 Mass. 466.

The evidence as to the custom of giving notice to linemen by men upon the ground was rightly admitted. It bore upon the question of the plaintiff's due care, and on that point it is immaterial that the action was against some other party than the employer of the plaintiff.

The evidence that the flags were stationed to notify the people that there was danger, "also the cars, particularly the cars," or "that there was a dangerous construction going on" there, was admissible to show the condition of things. If, as is now contended by the defendant, the judge in his charge to the jury suggested an erroneous bearing of the evidence and enlarged its proper scope, the answer is that no exception was taken to the charge.

Exceptions overruled.