Burrows v. Livingston-Niagara Power Co.

Hubbs, P. J.

The defendant was engaged in furnishing electric power to the Ebsary Gypsum Company, by which the plaintiff’s intestate was employed. He threw an iron pipe from a third-story window which came into contact with the defendant’s uninsulated power line and he received a shock which caused his death. This action was brought to recover damages because of the defendant’s negligence.

To my mind a mere statement of the fact that the defendant constructed and maintained a naked, high power line, carrying 11,000 volts of electricity, along the side of a factory, less than four feet from the building on one end and eight feet on the other, presents a question of fact as to its negligence. I think the decision of this case is controlled by the principle stated in the case of Braun v. Buffalo General Electric Co. (200 N. Y. 484), that is: “ Whether the respondent [defendant] in the exercise of reasonable care and foresight, should have apprehended that the premises over which the wires were strung might be so used as to bring people in contact with them, and whether, therefore, it should have guarded against such a contingency.” It was not necessary for the jury to find that the defendant should have apprehended that someone would throw an iron pipe twenty-five feet long from the third-story window and thus cause an injury. It is not essential that the defendant should have foreseen the particular consequences which might arise from the construction of the power line in the place and in the manner in which it was constructed. (McKenzie v. Waddell Coal Co., 89 App. Div. 415, 416; Lilly v. N. Y. C. & H. R. R. R. Co., 107 N. Y. 566, 575.)

The question is, should the defendant have anticipated, in the exercise of reasonable care, that the line as constructed constituted a menace and danger to people lawfully upon the premises? Is it so unreasonable to say that an employee of the factory might, in some way, cause something to come into contact with the live wire and thereby cause an injury that the court can say as a matter of law that such construction was not negligent? In the Braun case Judge Hiscock quoted from many cases illustrating the principle announced in that case. He also referred to the case of Horning v. Hudson River Telephone Co. (111 App. Div. 122; affd., 186 N. Y. 652). In that case a disused telephone wire dropped upon an uninsulated electric wire, thereby charging the telephone wire, with which the plaintiff came into contact and was injured. The contact of the two wires Was caused by the burning of a building to which the telephone wire was attached and it was held that the electric light company might be held negligent for failing to anticipate that the building which held the telephone wire was liable to burn and cause the telephone wire to come into contact with its uninsulated, high power - wire. That case extended the liability of a party maintaining a high power electric wire much further than the decision in the case at bar.

There is an exhaustive note to the case of City of Henderson v. Ashby (14 A. L. R. 1018; 179 Ky. 507) in which the cases where persons have been injured when employed near high power electric wires are collated. As I read the cases it is the tendency of the courts to hold companies which are distributing electricity over high power wires to a high degree of care.

I do not think that the case of Adams v. Bullock (227 N. Y. 208) holds anything favorable to the appellant’s position. In that case the wire was a trolley wire which could not be insulated. Judge Cardozo said: “ There is, we may add, a distinction, not to be ignored, between electric light and trolley wires. The distinction is that the former may be insulated. Chance of harm, though remote, may betoken negligence, if needless. Facility of protection may impose a duty to protect. With trolley wires, the case is different. Insulation is impossible.” Here, when the defendant placed this uninsulated wire, there Was a chance of danger, though remote. By the construction adopted the defendant needlessly so placed its wire without insulation that because of that chance the plaintiff’s intestate met his death. Judge Cardozo also said in his opinion in that case: “ Reasonable care in the use of a destructive agency imports a high degree of vigilance.” I think it Was for the jury to say whether the defendant was negligent, and that its verdict is sustained by the evidence.

The learned trial justice in his main charge properly. submitted to the jury the question of negligence. He instructed it to determine whether the defendant should, in the exercise of reasonable care, have anticipated that persons engaged about the Gypsum Company’s plant might be injured because of the location and condition of the high power wire. The limitations which he afterwards placed upon the main charge were favorable to the defendant and do not constitute reversible error.

The judgment and order should be affirmed, with costs.

Davis and Crouch, JJ., concur; Clark and Taylor, JJ., dissent on the law and facts in a memorandum and vote for reversal and granting a new trial.