(dissenting). Plaintiff’s intestate, Marvin A. Burrows, was engaged in removing boards and refuse from a loft above the third floor of the “ mill building ” of the Ebsary Gypsum Company. He ran an iron rod over twenty-five feet long through a broken pane in an upper window in one end of this building, causing the rod to touch a heavily charged power wire which had been strung by defendant several feet from the Wall of the building and over fifteen feet from the window in question. Decedent was instantly killed.
This charged wire was not strung near a dwelling or a business plant or any building in which the occupants were accustomed to or could use the windows in that end of the building in the usual course of affairs for any purpose. The wall along which the wires ran was practically a blank wall. All the windows in it were encased in steel and embedded in cement so that they could not be raised, lowered or opened in any manner. There was no room inside the building behind the two lower rows of windows for people to work, because that space was occupied by a large steel bin or vat; and the third floor was nothing more than a cover for this vat, with the loft or attic above it.
Negligence in the defendant was not necessarily dependent upon reasonable anticipation of all the possibilities or of the particular act resulting in Burrows’ death. But such negligence must be predicated upon something which is the natural and probable result of some reasonable foreseeable use of the premises above or near which the wire was stretched. The unfortunate mishap was not “ within the ken of reasonable prudence and foresight.” (Bowley v. Newburgh Light, Heat & Power Co., 151 App. Div. 65, 71.)
“ Only some extraordinary casualty, not fairly within the area of ordinary prevision could make it [the wire] a thing of danger.” (Adams v. Bullock, 227 N. Y. 208.)
“ The cause of the mishap * * * was an unexpected and unusual one bringing the accident within that class which are termed unavoidable and unforeseen.” (O'Sullivan v. Knox, 81 App. Div. 438; affd., 178 N. Y. 565.)
*210I dissent and vote for reversal on the law and facts, on the ground that there is no evidence upon which a finding of negligence in defendant can rest.
Clark, J., concurs.
Judgment and order affirmed, with costs.