Lenz v. Aldrich , 39 N.Y.S. 1022 ( 1896 )

Cullen, J. :

We agree with Mr. Justice Hatch in his view of the facts that the record before us presents and shall add nothing to his statement, referring only to such facts as in our judgment control the disposition of the case. We differ from our associate in that we think that the facts are insufficient to warrant a jury in imputing negligence to the defendant. It was proven that the clothes jiole when originally put up was a good pole and of proper material for the purpose. The life of such poles the evidence shows to be from eight to ten years, and this pole had been up but five years. The pole at the time of the accident had rotted almost through about an inch above the ground. Experts testified that the decay must have been going on for a year. During this period the pole had been in constant use, and no one had noticed the decay or any weakness or instability in it. From these facts two conclusions are irresistible: First, that ordinary cursory examination would not have disclosed the decay or defect; second, that a critical examination or inspection would have exposed it. Heither the defendant nor her janitor had any knowledge or notice of the decayed condition of the pole. This, however, would not give the defendant immunity from liability, if in the exercise of reasonable care she or her agent should have discovered the defect. The question is, therefore, narrowed to this: Should the defendant have made a critical examination in detail of a clothes pole during a period when, by the ordinary life of such poles, the pole should have been sound, and there was nothing to give occasion for suspicion to the contrary. We think not. The case is not similar to that of a bridge, a high scaffold on which men are to work, or even to that of a telegraph pole in the public highway. In such cases the danger from defects in the structures are great, and if accident occurs it is apt to be serious in its results. The clotlies pole was some six inches or more in diameter and seven feet high. Ho very formidible structure at the most. It was one of those common structures or appurtenances used in or about dwellings that unless so old as to cause suspicion of unsoundness are never subjected to more than a cursory examination. Ho one causes his ceiling to be inspected and carefully examined unless cracks or'other signs of weakness appear. One trusts to the security of the balusters along his stairs so long as no signs of weakness or instability are manifest. The same is true of a fence, of the doors, windows and stairs in a house. This conduct is justified by two reasons: First, the dangers from defects in these structures or parts of structures is not apt to be great; second, nearly always before they become so defective as to be dangerous they show preliminary signs of weakness or insecurity manifest to the casual observer. We could permit a verdict for the plaintiff in this case to stand only by wholly discarding our common knowledge of the habits and conduct of the community.

We are not wanting in authority to justify this conclusion. In Flood v. Western Union Tel. Co. (131 N. Y. 603) a system of inspection of the cross arms of telegraph poles by looking at them from the ground was held sufficient as against the servants of the defendant, the linemen who, in the course of their employment, had to climb the poles. In Alperin v. Earle (55 Hun, 211) the defendant was held not liable for a failure to discover the defect in a slat which had decayed on the under side, though a careful examination of the slat would have disclosed the defect.

The judgment appealed from should be affirmed, with costs.

All concurred, except Hatch, J., dissenting, and Pbatt, J., not voting.