57 N.J.L. 224 | N.J. | 1894
The opinion of the court was delivered by
Error is assigned upon the face of the record. The damages claimed in the declaration in the ad damnum
The remaining assignments of error, thirty in number, were each based upon an exception taken at the trial. The number of these exceptions is due to the multiform manner in which the objections to the conduct of the trial were made and taken. An examination of these exceptions in detail is impracticable. A consideration of the subjects to which they relate will be the most advantageous method of ascertaining whether the substantial rights of the plaintiff in error were infringed upon by the trial judge in his rulings and instructions at the trial.
Briefly the facts were these: The defendant, an electric light and power company, under competent legislative munieipal authority, had set up an electric plant in the town of
The allegation in the declaration was that “ the defendant, while it owned and controlled the said electric arc light and lamp, and the pole and ropes and pulleys by means of which the said electric arc light and lamp was hung and suspended, wrongfully, unjustly, willfully and negligently permitted the ropes and pulleys by means of which the said lamp was hung and suspended to be and become and remain rotten, weak, insufficient and defective, by reason whereof the said electric arc light and lamp fell upon the horse of the plaintiff, and so frightened and startled the horse of the said plaintiff that the said plaintiff was injured by being thrown from his wagon,” &c.
To maintain the allegation of negligence, the plaintiff’s testimony was directed to the condition and sufficiency of the ropes, the pulley and the wires.
When the plaintiff rested a nonsuit was applied for, and at the close of the case application was made for a direction that there be a verdict for the defendant, on the ground that there was not evidence of negligence sufficient to enable the plaintiff to go to the jury. The denial of these applications gave rise to exceptions on which the fourteenth and fifteenth assignments of error were based.
The evidence was that the lamp, which weighed twenty-six pounds and was suspended over the street, was held by a coarse-grained manilla rope of three or four strands and half
The general rule is that the occurrence of an accident does not raise the presumption of negligence; but where the testimony which proves that the occurrence by which the plaintiff was injured discloses circumstances from which the defendant’s negligence is a reasonable inference, a case is presented which calls for a defence. Bahr v. Lombard, Ayres & Co., 24 Vroom 233. Thus, in Byrne v. Boadle, 2 H. & C. 722, the plaintiff, walking in the public street in front of the defendant’s shop, was injured by a barrel of flour which fell upon him from a window above the shop; in Kearny v. L. B. & C. Ry. Co., L. R., 5 Q. B. 411; S. C., L. R., 6 Id. 760, the plaintiff, passing along the highway under a railway bridge of the defendant, was injured by the falling of a brick from the top of one of the pilasters on which one of the girders of the bridge rested; and in Mullen v. St. John, 57 K. Y. 567, a building which was in the course of erection by the defendant fell into the street and injured the plaintiff, who was passing by. In each of these cases it was held that from the happening of such an accident, in the absence of explanatory circumstances, negligence will be presumed, and the burden is upon
The assignments of error Nos. 1 to 13, inclusive, relate to the rulings of the judge admitting the evidence of Robert H. Burk and Henry Holtsman.
The witness described the manner in which the lamp was suspended and the appliances which were used for that purpose. He was permitted, under objection, to describe the imperfections in the rope, pulley and wires, and explain why their use made an unsafe support for the lamp, and to express an opinion on these subjects.
Holtsman was a mechanical engineer, and had been employed at Hewes & Phillips’ iron works for ten years. This witness had put up twenty-five or thirty electric lights for his employers, but his experience had been largely as a mechanical engineer, and it must be borne in mind that the examination of these witnesses related to the mechanical contrivances by which the lamp was suspended, and not to the adaptability of these structures to transmit electricity. He was permitted, under objection, to testify that a manilla rope such as was used was not a proper and suitable rope to sustain such a lamp, for the reason that a three-strand rope having three projections comes in contact with the pulley much harder than would a smoother surface, and thereby would be worn out quicker, causing the lamp to fall; and that a white cotton rope, which is woven closer, is a better material • and that a covered pulley, such as is in use, is better than a plain pulley, such as
These witnesses were experts with respect to the subject-matter on which they were examined, and the opinions of such witnesses are competent evidence whenever such testimony is reasonably necessary to give the court and jury a fair or intelligible understanding of the subject-matter in controversy. The examination of these witnesses allowed by the court was not carried beyond the limits of the rules regulating the admission of expert testimony.
Of the remaining of the assignments of error, Nos. 16 to 22, inclusive, apply to the charge of the court as delivered, and Nos. 23 to 30, inclusive, to the refusals to charge as requested.
In his charge the learned judge instructed the jury that the defendant maintained its lamps in the streets of Harrison under legislative authority, and that the company’s structures, such as posts, lamps, wires and ropes, were rightfully upon the streets; that the burden of proving the negligence of the defendant was upon the plaintiff; that the occurrence of the accident raised no presumption of negligence on the part of the defendant, and that the degree of care required of the defendant was ordinary care, having regard to the situation and business the defendant was engaged in.
.With respect to the duty imposed by law upon the defendant, the learned judge used this language: “ It was the duty of the defendant to provide a strong, sound and sufficient rope to hold the lamp securely suspended in its place. But that principle does not go to the extent of making them liable in all cases, if the lamp should fall. The complaint is that the rope was weak, was insufficient, rotten or defective; that the wires were in that condition; that the- pulley was not a proper pulley. Now, it was the duty of the defendant to furnish and provide good and sufficient materials, rope, wires and pulleys, to have the lamp properly affixed to the rope, the rope properly run through the pulleys and prop
The above extracts fairly represent the judge’s charge on the subjects to which the exceptions and assignments of error apply.
The learned judge did not charge that the defendant was an insurer of the safety of persons using the highway against injui’ies from the falling of its lamps. His instruction was that the defendant’s duty was to provide a strong, sound and sufficient rope to hold the lamp securely, and to provide good and sufficient materials, rope, wires and pulleys, to have the lamp properly affixed to the rope, the rope properly run
The requests to charge which were refused by the judge relate chiefly to matters of evidence, and so far as they relate to legal propositions are immaterial or were covered by the charge as delivered.
Part of the brief of counsel of the plaintiff in error is devoted to the discussion of matters of fact — the weight of evidence and the unreasonableness of the verdict. We cannot consider matters of fact of that nature on writ of error.
All the exceptions and assignments of error thereon have been examined, and finding no error on the record, the judgment should be affirmed.