| N.J. | Nov 15, 1915
The opinion of the court was delivered by
We think the trial judge was right in directing a verdict for the defendants for two reasons—first, the proximate cause of the injury was not the character or location of the feed wire, its lack of insulation (if insulation had been practicable), or the lack of guard wires; the accident was due solely to the negligence of Reilly’s engineer, Stewart, in failing to heed the warning of the fireman to lower the boom before moving up; second, neither defendant could, anticipate that a wire thirty feet up in the air would be interfered with by men unloading freight. The defendants had a right to assume that a wire so located would be left alone and even if they might in fact anticipate that Reilly’s men might perchance be negligent, they had the right in law to assume that no trespass would be committed upon their property. As we said in Guinn v. Delaware and Atlantic Telephone Co., 72 N. J. L. 276 (at p. 278), the owner’s right to protect his possession and to use his property is paramount. The case differs from cases like Rowe v. New York and New Jersey Telephone Co., 66 Id. 19; Spires v. Middlesex, &c., Electric Light Co., 70 Id. 355, and Herbert v. Lake Charles Co., the Louisiana case relied on by the appellant. In those cases the physical situation was such that wires were likely to become crossed by natural causes without any intervening culpable agent. Here the injury occurred by reason of the intervention of a culpable Imanan agent. Ho amount of care on the part of the defendants consistent with the conduct of their business in the ordinary way, could guard against possible culpable acts of others. The case is within the rule of Cuff, Administratrix, v. Newark and New York Railroad Co., 35 Id. 17, 29, which was approved in Delaware, Lackawanna and Western Railroad Co. v. Salmon, 39 Id. 299 (at p. 308), although it was inapplicable to the facts of that case.
The judgment is affirmed, with costs.
For reversal—Garrison, Parker, Kalisch, JJ. 3.