I take a different view regarding this case than that expressed by my associate Judge FINCH.
The Westchester Lighting Company maintained its electric light poles and wires on the southeast corner of Two Hundred and Thirteenth street and White Plains avenue, Bronx, New York city. Wires, extending from pole to pole, were thirty-four to thirty-five feet off the ground. There was no building on the adjoining lot. It was a vacant lot. The wires were properly constructed and, as placed, not dangerous or illegal. The company in maintaining them had complied with every law.
The Code of Ordinances of the City of New York, chapter 9, article 3, section 301, subdivision b, reads as follows:
"§ 301. Line wires.
* * * * * * *
"b. Line wires shall be at least eight feet from the nearest point of buildings over which they pass, and if attached to roofs the roof structures shall be substantially constructed. Wherever feasible, wires crossing over building shall be supported on structures which are independent of the buildings."
This ordinance did not apply to these wires when they were constructed. It is said, however, that there came a time when the ordinance did apply, and that the company violated it. When did this occur? These are the facts.
Someone — we are not told who — commenced the erection of a building on this vacant lot. Two or three days before the fatal accident in this case the brick structure had reached the vicinity of the wires. The brick mason testified as follows: "Q. Previous to the 29th day of August, 1927, when Mr. Carlock met with his unfortunate death, had you noticed any wires of the defendant — electric wires? A. Well, about two or three days before that I seen the wires coming across the corner of the building, * * * about a foot of the roof." *Page 353
No one notified the company to remove its wires or that a building was being erected on the lot. The most natural thing to expect of a contractor as he approached in his work electric wires would be to ask the owner to remove or replace them. Nothing of this kind was done. Somebody — we do not know who — took a stick and shoved the wires up to the height of about eight feet, and left the stick resting on the scaffolding or building. This was done in the morning, and in the afternoon when a heavy storm came up the wood, resting against the wire, together with the moisture, caused the wire to burn out or melt and drop upon the scaffold. At the same time firemen came to the building and one of them, going upon the scaffold, struck the wire and was killed. Wherein lies the negligence of the company?
As before stated, it constructed its wire according to law, and had a right to maintain it until such time as it knew, or had reason to know, that it might be dangerous to others. Only two or three days before the accident had the building, in process of construction, come near to the wire or within eight feet of it. The company was not notified of this fact or given an opportunity to remove or replace its wire. Apparently some workman undertook to do this for himself and, on the very day of the accident, pushed it up with a stick, causing the break.
The company is now blamed for the recklessness of third parties in failing to notify it, and, for the culpable negligence of a third party shoving the wire out of the way by a stick which caused the trouble and, ultimately, the death of the fireman. It is said that the company was negligent in not discovering that the building had approached the wire within eight feet. This would require a constant lookout over all vacant property or building operations, which is too strict a rule to apply. A telephone call or a notice of any kind would in all probability have caused the company to have removed or replaced the wire at once. Besides, the fireman was *Page 354 not killed because he struck a wire within eight feet of a scaffold or the roof of the building. His sad accident resulted from the negligence of a third party attempting to do that which the company never had a chance to do, i.e., replace the wires.
Failing to see any want of care upon the part of the Westchester Lighting Company, I am for the affirmance of the judgment for the defendant.
O'BRIEN, HUBBS, CROUCH and LOUGHRAN, JJ., concur with FINCH, J.; CRANE, Ch. J., dissents in opinion in which LEHMAN, J., concurs.
Judgments reversed, etc.