93 N.Y.S. 46 | N.Y. App. Div. | 1905
On the 25th of February, 1900, a building in the city of New York, together with personal property therein belonging to certain tenants, was destroyed by fire. The plaintiff and other insurance companies having issued policies to such tenants, idemnifying them against loss or damage, and after the fire having paid such losses, were subrogated to the rights of the tenants. Thereafter the claims of the other insurance companies were assigned to the plaintiff, which brought this action to recover from the defendants the aggregate amount of the loss, on the ground that the destruction of the property covered by the policies of insurance was caused by their negligence in constructing and thereafter maintaining their electric wires upon the building.
The answer denied all of the material allegations tending to show negligence on the part of the defendants.
At the trial there was substantially no dispute as to the destruction by fire of the property referred to in the complaint, or that it was of the value as therein alleged. It, however, was seriously contested that such destruction was caused by the defendants’ negligence, and much evidence was offered by both parties bearing on that subject.
At the conclusion of the trial the case was submitted to the jury with appropriate instructions as to the rights of the respective parties. The jury returned a verdict in favor of the plaintiff for the .amount claimed, and from the judgment entered thereon and an order denying a motion for a new trial, defendants have appealed.
I am of the opinion that the learned trial justice did nor err in
That the fire was caused by the electric wires I do not think can be seriously questioned. The evidence if not conclusive is at least very satisfactory on this branch of the case. Plaintiff’s witness Lynch, a police officer of the city, testified that while patroling his post a-little after one o’clock in the morning of the day when the fire occurred, he saw a blue flame coming from the wires which extended over the cornice, and rapped for assistance, to which another police officer, Gordon, responded; that he also notified a fireman in 'that vicinity of the fact; that the fireman, one Perry, responded to his call and when he arrived at the scene the flame continued to come
Much testimony was offered on the part of the defendants that the fire could not have been caused in this way. Notwithstanding that fact, taking the testimony upon both sides, the court could not do otherwise than submit the same to the jury.
It is contended that if it be conceded that the fire was caused by the wires, that this, in and of itself, did not justify a recovery. Assuming, without assenting, that such contention is correct, this naturally leads to the inquiry as to whether the defendants were negligent in constructing or thereafter maintaining the wires. At least five witnesses on the part of the plaintiff, who were familiar with the location of the wires and the transformer, either from occupying offices in the building or from having made an examination of them at the time of the fire, testified that the transformer was only six or seven inches above the cornice; that the insulators were
But it is contended by the appellants that the judgment should be reversed because the court erred in permitting plaintiff’s expert to answer a hypothetical question propounded to him. The question was as follows: “ Q. Mr. Osterberg, assuming that secondary wires carrying fifty volts of electricity are strung along and run over a tin or metallic cornice, which cornice is attached to the building, which secondary wires are attached on the front of the cornice on porcelain knobs, and then extended without any other insulation of porcelain knobs over and along the top of the cornice of the building, state whether or not that is good construction ? ” This and similar questions were duly objected to, the objections overruled, exceptions taken and the witness answered that it was poor insulation. The facts assumed in the hypothetical question had been established by the testimony of other witnesses, and it seems to me it was a proper subject for expert evidence, and, there- • fore, the court did not err in permitting the ■ witness to answer.
The defendants sought to show what were the rules and regulations of the various city departments and of the board of fire underwriters with reference to placing electric wires upon buildings and that these rules and regulations had been complied wdtli so far as the building in question was concerned. Such testimony was excluded on plaintiff’s objection and error is claimed in this respect. I do not think any error was committed in rejecting the testimony. The issue between the parties was whether or not defendants had been guilty of negligence in installing or thereafter maintaining the wires. This issue had to be determined upon evidence showing in the first instance how the work was done and what had thereafter taken place with reference thereto, and the plaintiff was entitled to have the person whose evidence was sought produced to the end that he might be cross-examined. The unsworn statement as to whether this work was properly done was inadmissible and it made
Other questions are raised by the appellants but they do not seem to be of sufficient importance to be here considered.
Tiie judgment and order appealed from, therefore, must be affirmed, with costs.
Van Brunt, P. J., Patterson and Laughlin, JJ., concurred; Ingraham, J., dissented.
Judgment and order affirmed, with costs.