Electric Co. v. Kelly. public, and from the performance of which the corporation receives no profit or advantage." Judgment affirmed. NOTE.-See note to Junior v. Missouri Elec. Light & Power Co., post. ESSEX COUNTY ELECTRIC COMPANY V. ANDREW KELLY. New Jersey Supreme Court, June 7th, 1894. INJURY TO LINEMAN BY BREAKING OF TELEGRAPH POLE. (Head note by the court): The liability of a master to a servant for an injury received in his employ will be established by proof that the injury was caused by the master's wilful wrongdoing, or resulted from the breach of a duty owed to the servant arising out of the relation between them. A duty of a master to a servant in his employ is to take reasonable care and precaution not to subject the servant to other or greater dangers than those which are obvious or naturally incident to the employment, the risk of which the servant takes by accepting employment. The master must take reasonable care to furnish tools and appliances with which, and places on or about which, the servant is employed to work, reasonably safe for the work. When a servant receives an injury from a latent defect in such appliances, or places, evidence to establish the master's liability must justify the inference that he either knew, or, by the exercise of the care required of him, might have known. of the defect; but he will not be responsible for a defect which the most careful scrutiny would not have disclosed. The above principles applied in an action brought by a lineman against his employer, a telegraph company, for injuries caused by the breaking of a telegraph pole, upon which he was working by direction of an officer of the company. Newark Pass. Ry. Co. v. Block, 4 Am. Electl. Cas. 523, cited in opinion. APPEAL by defendant below from judgment of Circuit Court, Essex county. Facts sufficiently indicated in last paragraph of head note, in addition to those stated in opinion. Edward A. Day, for plaintiff in error. Electric Co. v. Kelly. Samuel Kalisch, for defendant in error. MAGIE, J. After the evidence produced by Kelly had been put in, counsel for the company moved for a nonsuit, on the ground that it did not establish any liability on the part of the company for the injury Kelly had received. The motion was denied and an exception taken. After the evidence produced by both parties had been put in, counsel for the company requested the trial court to direct the jury that the liability of the company for the injury to Kelly had not been made out. The request was refused, and an exception taken. Two of the assignments of error are based upon these exceptions, and they may be considered together, for they obviously present the same question, viz., whether, upon the facts established by proof, a neglect of duty on the part of the company to Kelly may be inferred. Railway Co. v. Block, 55 N. J. Law, 605. The parties bore to each other the relation of master and servant. The liability of a master to a servant for an injury received in his employ will be established by proof that the injury was caused by the master's wilful wrong. doing, or resulted from the breach of any duty which the master owed the servant arising out of the relation between them. Bish. Noncont. Law, sec. 639. There was no pre tense in this case that the company had been guilty of any wilful wrong to Kelly. His claim was and is that the injury he received was the result of a breach of a duty which the company owed him. The better view of a master's duty to a servant is that which, taking into consideration the well settled doctrine that a servant, by accepting employment, consents to take the risk of all dangers obviously or naturally incident to such employment, imposes on the master a positive duty to take reasonable care and precaution not to subject the servant to other or greater dangers. The rule thus formulated is of wide application, but, with reference to such cases as that now Electric Co. v. Kelly. under consideration, may be thus stated: The master must take reasonable care to have the tools and appliances with which, and the places on or about which, the servant is to be employed, reasonably safe for the work the latter is employed to do. Shear. & R. Neg. secs. 92, 93; Smith, Mast. & Serv. 236; Harrison v. Railroad Co., 31 N. J. Law, 293; Hutchinson v. Railroad Co., 5 Exch. 343. Applying the rule thus stated to the case before us, it is obvious that, to justify the submission to the jury of the liability of the company to Kelly, the facts established must have warranted the inference that the breaking of the pole, which was the cause of his injury, resulted from a breach of the company's duty to him in respect to that pole. The company did not guarantee the safety of the pole, nor was it its duty to provide a sufficient pole, as was erroneously held below. Its duty was less extensive, and would have been satisfied if it had taken reasonable care to provide a pole of sufficient strength to bear the strain of the wires and the weight of the servant employed thereon to do what was required to fit them for the service of the company. The mere fact that Kelly received injury does not establish, even prima facie, the negligence or breach of duty of the company. Evidence which may justify the inference of negligence of the master, but also and equally the inference of the negligence of a fellow servant, will not be sufficient; nor will evidence which is equally consistent with the absence as well as with the existence of negligence on the part of the master. Bahr v. Lombard, 53 N. J. Law, 238, 21 Atl. 190, and 23 Atl. 167; Duffy v. Upton, 113 Mass. 544; Rose v. Railroad Co., 58 N. Y. 217; Baulec v. Railroad Co., 59 N. Y. 356; Cotton v. Wood, 8 C. B. (N. S.) 568. When a servant receives an injury by reason of a latent defect in the appliances with which or the places in which he is employed, to establish the liability of the master the evidence must justify the inference that the master either knew, or, by the exercise of Electric Co. v. Kelly. the care and diligence required of him by the rule, might have known, of the defect. Wright v. Railroad Co., 25 N. Y. 562; Devlin v. Smith, 89 N. Y. 470; Holden v. Railroad Co., 129 Mass. 268. A master will not be responsible for defects which could not have been discovered by the most careful scrutiny. Ladd v. Railroad Co., 119 Mass. 412; Spicer v. Railroad Co., 138 Mass. 426. The rule which required the company to take reasonable care and precaution to furnish a pole suitable to be used for the purpose to which it was put, doubtless required it to take like care to preserve the pole in fit condition, and to that end to reasonably examine whether or not it became unfit or unsafe from wear and tear or otherwise. It is a matter of judicial disagreement whether a master can discharge the duty last named, and the similar duty of keeping tools and appliances in repair, by selecting and employing competent persons to make inspections and repairs. In our courts it is held that the master's duty may be thus discharged. Harrison v. Railroad Co., ubi supra; Machine Works v. Hand, 50 N. J. Law, 464; McKin. Fel. Serv. secs. 28, 32-35. Turning to the evidence presented by the bills of exception, we find the following facts established and undisputed: The pole in question had been in use about two years, and stood erected outside the curb line of a public street. It carried various wires, having a cross bar fastened to it by lag bolts which passed through the pole. It was also connected with a pole on the other side of the street by a wire drawn tight, and used to support an electric light. Kelly, with others, was directed to take down. the pole, remove it to a spot inside the curb line, and readjust the wires thereon. In taking it down, the pole fell. The cross bar was partially detached, by one of the lag bolts being torn or dragged through the pole, and a part of the pole was splintered off. Kelly replaced the cross bar by boring a new hole, and adjusting the lag bolt Electric Co. v. Kelly. therein. The pole thus changed was erected in the new position. Kelly went to its top, drew up the wire connecting it with the pole on the opposite side of the street, and while in the act of stretching that wire taut by a device called "strap and vise," which caused considerable strain, the pole broke, and Kelly fell with the broken portion to the ground. In respect to the cause of the break, the facts were in dispute. Kelly attributed the break to the rottenness of a part of the center of the pole, which he discovered on examination of the broken piece. Witnesses for the company who had also examined that piece and the remainder of the pole testified that there was no rottenness therein, and attributed the fracture to the injury done by the previous fall, which had seriously weakened the pole. When facts are in dispute, the cause must, in general, be submitted to the jury; but when, upon the evidence, any deduction which can be drawn from the facts fails to establish the liability of defendant, the cause is not one for a jury. There is no room for doubt that the fracture of the pole was due either to the cause assigned by Kelly or to that assigned by the witnesses for the company. If it was due to either of these causes, the liability of the company was not made out, for that liability depended upon proof of a breach of its duty in that regard, to which breach of duty the fall might reasonably be attributed. The duty in question is, as has been shown, that of taking reasonable care to have this pole when erected, and to keep it after erection, of sufficient strength. It is a duty of reasonable inspection and examination. That there was a failure to perform this duty is not made out either by direct proof or by any justifiable inference. Kelly testified that during the two years of his employment he did not know of any inspection; but his ignorance was not inconsistent with the most careful precaution on the part of the comapny, and an offer to prove the custom of the company was excluded on his objection. If such a |