125 N.Y.S. 622 | N.Y. App. Div. | 1910
Plaintiff’s intestate was killed by an electric shock communicated to him through a wire of the defendant which fell upon Clark avenue, Far Rockaway, crossing a high voltage wire of the Queens Borough Gas and Electric Company and the story of the accident is briefly as follows: An express wagon of the Long Island Railroad Company was being driven along Clark avenue by one Cronin in the early evening of a rainy night when the horse came in contact with a wire of the defendant, which had crossed the high voltage wire mentioned above. The horse was knocked down, and the wagon, a rubber-topped affair, passed under the wire, which fell
We are clearly of the opinion that McEamee, as a matter of law, was guilty of contributory negligence. E6 one was in immediate danger; he knew that the current was strong enough to knock down a horse; he must have observed the flashing and sputtering of the wire as he approached it, and knowing that it required a rubber glove to handle the wire, he deliberately took hold of the same and was killed. Clearly the defendant, assuming its negligence in permitting its wire to fall, was not the proximate cause of this death. There was no occasion for McEamee to undertake to remove this wire; no one was presently menaced by it. He was warned, and apparently knew of the danger, and if he chose to walk deliberately from a place of safety, and to affirmatively take the action which brought about his death, it is not just that the defendant should be charged with the liability for his death.
The judgment and order appealed from should be reversed.
Jenks, Thomas, High and Carr, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.