102 A.D. 433 | N.Y. App. Div. | 1905
Lead Opinion
I think there was sufficient evidence to warrant the submission to the jury of the question as to whether automatic current breakers, suitable to be used in connection with machines similar to the one involved here, were in general use, and if so, whether the defendant was negligent in not so equipping this machine. Two witnesses for the plaintiff testified that such an appliance was in general use ; one of these, however, derived his knowledge solely from reading, and the other bn cross-examination testified that he had actual knowledge of only one plant using as high a voltage as 6,600 where such appliance was used, but he knew of several where over 5,000 voltage was employed. Three experts were called by the defendant, the effect of whose evidence was that such appliances were in practical operation where the voltage did not exceed 2,000, but were in an experimental state so far as being adjusted to a current of higher potential than 2,000 volts. Their evidence also was that the working capacity of the machine in question was from 300 to 350 volts on the alternating side, and 240 volts on the direct current side. The evidence of the plaintiff’s witnesses was to the effect that this accident could not have happened had the machine been equipped with a breaker adjusted to work automatically, or with a fuse on the direct current side, and it may be said that the plaintiff’s theory that the excess current entered the machine from the “ D. O.” side is supported by the evidence of the defendant’s own witnesses to the effect that a current of 6,000 voltage would instantly have blown out the fuse on the alternating side, which was found to be intact after the accident.
But it is said that the negligent act of Brinkman in turning in the wrong switch, and not the failure to supply an automatic current breaker, was the proximate cause of the accident. This conclusion is based on the reasoning in cases where the question determined was whether some independent agency had intervened to break the causal connection between the cause alleged and the result. The defendant had a series of generating plants, so connected that currents of 6,600 voltage could be transferred from one station to another, as the demand upon the different stations varied. The plaintiff, having no duty to perform except to oil the engines at the Duane street station, a fellow-servant of Brinkman employed at the One Hundred and Twenty-first street station only in the sense that he was employed by the same master, unconscious of danger and with no means of warning, received the grievous injury complained of, because, as the jury have said, the master failed to provide reasonably safe machinery at the place where the injury was received. But because the current causing the injury was set in motion by the act of a fellow-servant employed as remotely from the plaintiff in practical effect as though separated by the maximum distance possible for electricity to travel, it is urged that the negligence of the fellow-servant, and not that of the master, was the proximate cause of the injury. The same reasoning would prevent a recovery in every case of failure on the part of a master to discharge his duty in the adoption of safety appliances designed only as preventives. Of course the absence, of the circuit breaker could not in a literal sense be said to have been the cause of this accident; its presence, however, would have prevented it,' and its absence, being a breach of duty on the 'part of the master, was a juridical cause. The- negligence of the master was continuous, and harmless
I do not think that the defendant can complain of the charge. For reasons already stated, it was not error to submit to the jury the question whether there was a fuse on the direct current side of the machine; and the other portion of the charge challenged in this court does not present ground for reversal. The court did not submit the question of Brinkman’s negligence to the jury, but clearly pointed out that the plaintiff’s right to recover depended solely on the question as to whether the defendant should have apprehended such a condition as resulted, and guarded against it. What the court said as to Brinkman was only illustrative of the question which the court was discussing, viz., whether in the exercise of reasonable prudence the defendant should have anticipated that an overcharge of current might enter this machine. It is apparent, that the verdict was not made to depend in the slightest upon the character of Brinkman’s act. The court distinctly charged that, the defendant was not bound to anticipate or guard against the possibility that any fellow-servant would negligently turn the wrong-switch. The effect of the whole charge was that if the defendant,, in the exercise of reasonable care, should have apprehended that, from some cause, not the result of negligence of the plaintiff’s, fellow-servants, an overcharge of current was likely to enter this machine, and failed to use reasonable care to guard against it, the plaintiff could recover, irrespective of what did in fact produce the overcharging. It is true that in the colloquy with counsel, after-several requests had been made and passed upon, the court said: “ I proceeded on the assumption that this man handled the switch with due care, but in a moment of forgetfulness made a mistake.” This remark was not addressed to the jury; no exception was taken to it, and I do not think the jury could have been misled by it. It is difficult to understand how a jury could have been confused by a
The verdict is a large one. But, considering the age of the plaintiff, his earning capacity at the time of the accident, the different operations which he had to undergo, with the attendant pain and suffering, and the grievous character of the injury, which the defendant did not attempt to controvert, we cannot, without invading the province of the jury, say that it was excessive. These conclusions lead me to vote for affirmance of the judgment and order appealed from.
Hibsohberg-, P. J., and Rich, J., concurred; Woodward, J., read for reversal, with whom Jenks, J., concurred.
Dissenting Opinion
The plaintiff, a man about thirty-four years of age, was employed by the defendant in its Duane street electric lighting station, as an oiler of machinery, on the 20th day of June, 1901. He had been in such employ from November, 1899. At about seven o’clock in the evening of the twentieth of June, while in the discharge of his duties, he noticed that a machine, known as a commutator, or rotary converter, had become red hot, and this was followed by pieces of copper and iron being thrown about the room. He attempted to run away, after being hit by a piece of the copper, but was struck by a piece of iron on his leg, and the leg was cut off. An examination after the accident showed that the commutator had, by some action of the electric currents, been heated to such an extent that the motion of the machinery caused it to fly to pieces, with the result to the plaintiff above stated. Upon .the trial it was developed that the defendant has a series of electric lighting stations, connected by a main cable inclosed in a conduit, and it was custom- ' ary, after the down-town places had been closed, to connect the Duane street station with the up-town plants, to aid in furnishing the current to residences, etc. On the evening in question one Harry L. Meyers, foreman of the One Hundred and Twenty-first street station, telephoned the Duane street station for more power
It was not disputed that the defendant had equipped its machine with current breakers; that it had a competent man on hand to operate such current breakers, but there was a dispute in the evidence whether there was not a better contrivance ■— an automatic current breaker ■—-which was in more or less general use, and this question was fully litigated, with the result that the jury has found that the defendant was negligent in not providing this automatic current breaker, or in not having an approved fuse upon both sides of the machine, but it seems to me that all of this part of the testimony is wholly immaterial, from the fact that the lack of these contrivances was not the proximate cause of the plaintiff’s injury. If the accident had been initiated by the defendant, or if it had
This much upon the reason of the case. The authorities, I believe, sustain the propositions above set forth. “ The proximate cause,” say the court in Insurance Co. v. Boon (95 U. S. 117, 130), “ is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.”
In the case of The G. R. Booth (171 U. S. 450, 458) the court cites with approval the language of the court in Milwaukee & St. Paul R. Co. v. Kellogg (94 id. 469) in reference to what constitutes the proximate cause, as follows : “ The inquiry must always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury.” The court continues : “ In the present case the burning of the city hall and the spread of the fire afterwards was not a new and independent cause of loss. On the contrary, it was an incident, a necessary incident and consequence, of the hostile rebel attack on the town — a military necessity caused by the attack. It was one of a continuous chain of events brought into being by the usurped military power — events so linked together, as to form one continuous whole.”
In Goodlander Mill Co. v. Standard Oil Co. (27 L. R. A. 583, 586; 63 Fed. Rep. 400, 405) a proximate cause is defined as follows : “ The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and Avithout which the result would not have occurred.” And the same court say (p. 587):
I am of opinion that the charge of the learned trial court, as modified, constituted error calling for a reversal of the judgment. The court, after stating that the defendant was not bound to anticipate the mere possibility of an accident, added: “ But if, in the
This, it seems to me, could have no other effect than to confuse the jury. There was no evidence in the case, so far as I am able to discover, that there was any defect in the switchboard at the One Hundred and Twenty-first street station ; that there was any drowsiness or other imperfection on the part of Brinkman — certainly none for which the defendant was in any manner responsible — and the charge, as it was finally completed to the jury, must have left them with the impression that they had a right to find that in some way the master was liable to the plaintiff for the act of Brinkman. Unless the defendant was responsible for his acts, there could be no
The judgment and order appealed from should be reversed and a new trial granted, with costs.
Jenks, J., concurred.
Judgment and order affirmed, with costs.