75 N.Y.S. 667 | N.Y. App. Div. | 1902
Lead Opinion
This action is brought to recover damages for personal injuries alleged to have been sustained by plaintiff Through defendant’s negligence. Upon the trial plaintiff gave evidence tending to show that as he was walking across Second avenue on the southerly crosswalk of One Hundred and Sixteeth street, toward the west, at about seven o’clock in the evening, on Sunday, the 12tli day of February, 1898, he stepped with his right foot upon the slot rail between the rails of the north-bound track of. the defendant’s road and received a shock of electricity in his foot and leg, which precipitated him to the ground, whereby he sustained a fracture of both bones of his right leg below the knee in the region known as the lower third. There had been quite a severe snow storm since nine o’clock in the evening before, the snow falling at intervals all day,' about five inches having fallen altogether. The average temperature on the twelfth was four degrees below zero. Plaintiff’s shoes were wet and he had no rubbers on. He testified that before stepping on the track he waited for a north-bound car to pass and that he observed a flame- or flashes of electricity from the slot under the car or following a few feet behind it, as it passed over the crosswalk and up into the block beyond.
The opening between the slot rails, which are even with the surface- -of the street, is from, three-quarters of an inch to an inch in width. Below the slot rails is a cement conduit, elliptical in form, about eighteen inches deep and from thirteen to sixteen inches wide. The conduit is in part formed of iron yokes set five feet apart, which support the tram rails and slot rails. In this conduit and from nine to thirteen and a half inches below the surface of the slot rails, there are suspended two conductor rails, one upon either side and about three inches from a perpendicular to the center of the slot. These conductor rails are supported by porcelain insulators carried in cast iron caps which are bolted, to the slot rails. A steel plow projects from ■ the car through the slot, and forms a sliding contact with the conductor rails, and thus transmits the electric current to and from-the motor in the car. The electric current is supplied to the conductor rails in separate sections, fed separately from the power house. In the defendant’s power house, situated at One Hundred and Forty-sixth street and Seventh avenue, it had devices
There is a device known as a conduit plow or scraper, for removing snow or mud from the conduit. In the bottom of the conduit there are cleaning pits at intervals of 200 feet. The scraper or plow is on the end of an iron shank which passes through the slot and may be attached to a car. It scrapes the mud or snow into the cléaning pits, from which it is removed by hand. The defendant had two of these scrapers or plows on the line operated by horses. Evidence was introduced in its behalf tending to show that when this snow storm set in its snow sweepers were brought into use, and also these conduit plows or scrapers, and kept on the line throughout the storm. The evidence showed 'that this line was about six miles in length, and that these scrapers or plows would make a round trip over it in about an hour and ten minutes, and could go as fast as the passenger cars. The trackmaster, chief engineer and electrical engineer of the defendant testified that they received no notice of any ground or leak at that time, but no one 'in direct charge of defendant’s appliances at the power house for indicating a leak was called to give testimony as to whether or not any leak was indicated or record made thereof. In these circumstances, every inference warranted by the • evidence would be indulged in against the defendant,' which, presumably having the evidence in its possession, omits to produce the same or explain the omission.
There was a sharp question of fact for the determination of the jury as' to whether the plaintiff’s injuries were sustained in consequence, of an electrical shock or by his slipping upon the rail. The court fairly submitted this question to the jury, and in the charge in chief instructed them that the burden of proof was on the plaintiff of showing that his injuries were caused by an electric shock. The doctrine of res ipsa loquitur we think properly applies to this case, and the trial court properly instructed.the jury that if the injuries were received through an electric shock from electricity escaping from the defendant’s rail, negligence on its part would be presumed “ to such a degree as to call upon the defendant for an explanation and to put it to its proof.” (Clarke v. Nassau Electric R. R. Co., 9 App. Div. 51.)
Three exceptions are specially urged upon this appeal as constituting reversible error. They were taken to. the refusal of the court to charge three requests presented by counsel for the defendant. The record-indicates that these requests were not read to the jury. They appear to have been merely handed up to the court, and the court having failed to instruct the jury as requested, exceptions were taken to the refusal of the court to charge- the requests, which' were referred to by numbers. The first request recited the plaintiff’s claim as alleged in the complaint and requested an instruction that the plaintiff was bound to prove the allegations of his. complaint by a preponderance of evidence; otherwise, that he could not recover. The thirteenth recited the concededly proper construction of the road and that there was no evidence that the electric- current could escape except as a consequence of the snow storm, and requested an instruction that “ if the jury find that the snow storm was in fact the cause of the plaintiff’s injury, the defendant is not responsible for that, and the jury must render a verdict in favor of the defendant.” The seventeenth'was as follows : “ The mere fact that an accident happened and that plaintiff was injured is not sufficient to justify a recovery by the- plaintiff, but the plaintiff must prove that he was injured by reason of some negligent act or breach of duty on the part of the defendant.”
The thirteenth request was properly refused. It erroneously
As has been seen, these requests were not read aloud; therefore, the jury could not have obtained an erroneous impression from the failure of the court to grant them. Furthermore, I think the learned trial justice fairly, fully and impartially instructed the jury upon the subject. The court instructed the jury that the defendant’s duty was to exercise ordinary care, which is that care that an ordinarily prudent person would exercise under like circumstances, in view of all the circumstances requiring the exercise of watchful care and prudence to prevent the escape of the electric current. The learned trial justice stated to the jury that the plaintiffs claim was that the escape of electricity was due to the failure of the defendant to clear its slot rails of snow or other substances producing moisture, and.then drew their attention to the testimony introduced by the defendant tending to show that it had exercised care in removing the snow and other substance that might be in the conduit, and said to them : “ If you believe such testimony it will be your duty to render a verdict for the defendant. No evidence ■ to the contrary of the defendant’s witnesses as to the cleaning of the tracks and of the slot rails has been given, except such as might be inferred from the accident, in question.” Evidence was given on the part of the defendant tending to show that it would be impossible for the slot rails to become charged with electricity, and the court instructed the jury that if they believed this evidence it would be their duty to render a verdict in favor of the defendant. The jury were also instructed that if the defendant had given a sufficient explanation of the accident, or if the accident Was unavoidable and could not have been prevented or guarded against by the exercise of ordinary care and prudence, they should render a verdict in favor of the defendant. The court also charged-that if the jury should
It is difficult to see how, in view of the charge delivered by the court, the jury could have entertained the belief that .-the mere happening of the accident and injury to the plaintiff Was, sufficient to justify a recovery, or that the burden of proof was’ not upon the the plaintiff to establish the negligence alleged by a" fair- preponderance of evidence. , . -,-
The appellant contends that it has OvérCome. the "presumption of negligence on its part raised by the doctrine of rés, vpsa-.'loquitur. It did not sufficiently overcome the presumption as matter of law. The question was still for the jury to weigh the evidence introduced on the part of the defendant, in the light of the legal presumption
Of course, if the defendant exercised proper care and without-negligence on its part the insulators got out of repair, or the electric-current escaped owing to snow or moisture, it would not be liable unless it failed to remedy the defect within, a reasonable.time, after-actual or constructive notice-thereof. (Casper v. Dry Dock, E. Broadway & Battery R. R. Co., 56 App. Div. 372.) In this case,, however, the presumption of negligence was not so clearly or satisfactorily met as to warrant or require that the case be taken from the jury. Furthermore, the evidence tending to overcome the presumption of negligence was given by defendant’s employees, whose credibility was for the jury (Volkmar v. Manhattan Ry. Co., supra ; Eastland v. Clarke, 165 N. Y. 420, 430 ; O'Flaherty v. Nassau Electric R. R. Co., supra.)
The only other error assigned by appellant is the admission, of expert testimony of the fact that if .the slot rail was charged with"'electricity and plaintiff stepped upon it, under the conditions existing at the time which Were recited in the hypothetical question, he would receive an electric shock. The witness was an electrical engineer, had had-a large experience, knew the effect of electricity upon the human body, and was thoroughly conversant witli the subject. We think the evidence was competent.
The verdict is reasonable in- amount, and the judgment and order should be affirmed, with costs.
Patterson and O’Brien, JJ\, concurred; Van Brunt, P. J., and; McLaughlin, J., dissented.
Dissenting Opinion
(dissenting) :
I dissent. I think the court erred in refusing to charge the defendant’s seventeenth request, which was as follows : “ The mere
I am unable, after a careful consideration of the charge as made, to discover where the court charged the proposition requested, even in substance. In the main charge the court, after stating that, the burden was upon the plaintiff of proving that he fell by an electric shock, then qualified such instruction by saying if the jury found that the fall “ was 'due to an electric shock, * * * all that is necessary, under such circumstances, for the plaintiff to do, is to prove the injury, and negligeiice on the part of the defendant will be presumed to such a degree as to call upon the defendant for an explanation and to.put it to its proof.” This is equivalent to saying if the jury believed the plaintiff’s testimony to the effect, that his fall was caused by a shock of electricity ? then the negligence of the defendant necessarily followed as a legal conclusion; in other words, if the plaintiff’s'fall was caused by an electric shock, that then the burden was upon the defendant to prove its freedom from negligence. Nowhere did the court instruct the jury, so far as I am able to discover, that upon the question of defendant’s negligence, even though plaintiff’s fall was caused by a shock of electricity, the burden of proof was, nevertheless, upon the plaintiff. Defendant was entitled to have the jury so instructed. (Kay v. Met. St. Ry. Co., 163 N. Y. 447; Jones v. Union Ry. Co., 18 App. Div. 267.)
I am of the opinion, therefore, that the judgment should be reversed and a new trial ordered.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.