70 N.J.L. 211 | N.J. | 1904
The opinion of the court was delivered by
This writ of error brings up a judgment of the Supreme Court, affirming a judgment of the Monmouth Circuit Court, -entered upon the verdict of a jury finding the defendant company liable for the death of plaintiff’s intestate.
The contention here is that the Circuit Court erred in submitting the case to the jury. From the record and bills of exceptions, it appears that the court refused to nonsuit the plaintiff and declined to give a direction for a verdict for the defendant. Exceptions to each ruling were allowed, and under proper assignments of error it is now claimed that the judgment should be reversed.
The argument here asserts error in these respects on two grounds, viz., (1) that there was no evidence sufficient to justify the conclusion that the defendant company was liable to an action for the death of plaintiff’s intestate, and (2) that the evidence conclusively, showed that his death was due to his own negligence and la.ck of care.
The circumstances under' which plaintiff’s intestate came to his death, as disclosed by evidence .which the jury might credit, with such reasonable inferences therefrom as the jury might draw, are the following: He was in the employ of one Asi-el, and in charge, as caretaker, of Asiel’s house, at Long Branch. His employer and family had left the house and the deceased was living, with his family, in the stable on the premises. Among the duties of the deceased, he was
The wire was one by which the defendant company fur'nished a current of electricity for the lighting of the house. At Mr. Asiel’s request, the current had been shut off from the house, but continued to flow through the wire which deceased had in his grasp. The son endeavored to pull his father away, receiviixg a severe shock himself. Others, who came shortly, found the deceased- in the position described by the son. They extricated the body and made efforts to resuscitate him, without result. They noticed that the left hand was severely burned with rubber blisters therein, and that the insulation of the wire which he had grasped was pulled down, exposing the wire for some inches.
It is clear that the inference that plaintiff’s intestate was killed by a current of electricity transmitted by the defendant company through the wire in question, which operated to produce injury by passing.through his body to the tin floor of the balcony, and thence, by the leaders, to the ground, was >one which the jury might justifiably make. But this inference alone would not establish defendant’s liability to answer in damages for the death.. It must further appear that in transmitting, the current through the wire in the condition it then was, the defendant company was negligent in some duty which it owed-to,,the deceased.-
There was also evidence tending to show that there'were insulating devices which would have protected these wires and prevented the escape of the current therefrom. It is obvious, from an inspection of the photograph accompanying the brief presented on the part of the defendant companj', that some barrier might have been erected which would have prevented anyone standing on the balcony from reaching or coming in contact with the wires. The contention on the part of the company is that when it had used that form of insulating protection which was usually emploj'ed in overhead construction it had done its full duty, and cannot be held responsible because the insulation failed to protect. But, in my judgment, this is too narrow a view of the company’s duty. When it placed its converter on the top of a pole fifteen or twenty feet high, to which no one not connected with the company would be likely to have access, the rule of duty contended for would probably be properly-applied. But
When it placed its converter in the position indicated, it was bound to consider and foresee the possibilit}', and the probability, of some one, using the balcony for pleasure, or for working thereon, coming in contact with the wires and receiving injury thereby, and to take such precautions as might be reasonably taken against such results. This duty it owed to every person lawfully using the balcony. Whether the company did take such precautions and exercise such care as the circumstances demanded, was plainly a question for the jury.
There was evidence from which the contributory negligence of deceased might perhaps be inferred, but none so conclusive as would justify an instruction for the defendant. It was shown that deceased had been warned by an employe of the defendant company of the danger in coming in contact with the wires. There was also evidence that a person warned deceased on the morning of his death, and upon learning that he was going to work on the balcony, that the wires were dangerous, and that deceased replied that he was not afraid of them. When first found, the left hand of deceased was firmly clasped upon the wire. If it may be inferred therefrom that deceased deliberately took hold of the wire, either to show that he was not afraid of it or for some other reason, his conduct was negligent, and if such was the only inf erence possible, a direction for a verdict would have been proper. Anderson v. Jersey City Electric Light Co., 35 Vroom 664.
One other assignment of error has been argued. It was directed to a sentence of the charge of the learned justice, which was excepted to. It was in the following words: “The usual rule applies, and that is that they are charged with introducing the agency by the use of the best known means and appliances for so doing.” This followed a statement of the duty of persons using a dangerous agency to exercise a high degree of care to prevent injury to persons who in the exercise of a lawful right come in contact with such agency. Taken in its connection, the particular sentence now urged as erroneous is not deemed to impose upon the defendant company any other duty than that of inquiring for and selecting the means of safely using the dangerous current of electricity which are best known for that purpose. This is familiar law, and the charge in that respect was not injurious to defendant.
No error being found, the judgment will be affirmed.