138 N.Y.S. 279 | N.Y. App. Div. | 1912
The Chamber of Commerce of the city of Troy entered into a contract with one Payton for the installation of wires through said city for the purpose of an electrical display at the Hudson-Fulton Celebration. The defendant erected upon Church street, eight or ten feet south of Broadway, upon the sidewalk, a little building or box-like structure, a leanto, sitting up against the wall of the building next the sidewalk and extending out, practically covering the sidewalk. • The structure was about eight feet high next to the building, and about seven feet eight inches high near the curb. Its length along the sidewalk was about twelve feet six inches. Church street was a narrow street or alley but was paved and had sidewalks. The defendant installed in the building two converters, carrying an electrict current of 2,300 volts. The contractor for the Chamber of Commerce brought the wires into the building at the side of the curbing, under the eaves, and apparently about seven feet .above the walk, and the defendant connected up the wires with
A motion for nonsuit was made and argued by counsel. The court intimated that the wires were installed by the Chamber of Commerce and perhaps it would be responsible, but that it could not see how the gas company had done anything for which it was responsible, whether it was a nuisance or not, but finally submitted the case to the jury as to whether the defendant was maintaining a nuisance which caused the intestate’s death. The court was in error in saying that the defendant had done nothing for which it was responsible. The improper wiring alone did not cause the death, it was caused by a combination of circumstances. The defendant built a low structure upon the street for use during the celebration; its height was .such that boys might naturally desire to climb upon it to view the parade. The wires entered the building in an improper manner and without proper protection and with entire disregard to the safety of others. The defendant brought into the building a current of 2,300 volts of electricity to its converters, which were there reduced to 110 volts. Before connecting the wires with its converters and putting in use the building which it had erected and supplying its current, the defendant owed some duty to the public to see that the situation about the building and the converters was reasonably safe, and by a violation of that duty it conducted its business in a negligent
The complaint is framed in negligence, charging that the defendant negligently carried its wires close to the sidewalk, into a box on the sidewalk carelessly and unlawfully constructed and maintained by the defendant, which was a trap and thus likely to entice and lure children and others to climb upon the same; that the wires and box were dangerous and that the wires were unguarded, to which was added the allegation “and further said box and wires and apparatus at the time hereinafter mentioned constituted a nuisance.” The accident was unnecessary and was due to the careless and dangerous manner in which the defendant was conducting its current of electricity to or from its building. Whether the intestate’s negligence precluded a recovery was a question for the jury which has been solved against the defendant. Conceding that the intestate was free from negligence, the liability of the defendant upon the conceded facts is clear, and the judgment should not be reversed, because the judge instead of submitting the case to the jury as one of negligence named it as one of nuisance. The defendant was permitted to prove by parol authority from the city to construct the box-liké structure, although no such permission was alleged in the answer. The ruling in that respect was more favorable to the defendant than it had the right to expect. (Clifford v. Dam, 81 N. Y. 52; Blake v. Meyer, 110 App. Div. 734.)
The alleged permit clearly did not cover the right to install the wires in such a manner as to endanger the public. A new trial cannot result in any good to the parties concerned. The
All concurred, except Houghton, J., dissenting.
Order setting aside the verdict reversed, and the verdict reinstated, with costs to appellant.