98 N.Y.S. 124 | N.Y. App. Div. | 1906
This appeal is hy the defendant from a judgment in plaintiff’s-favor for $40,000 for damages alleged to have been sustained in-consequence of the killing of plaintiff’s-intestate. His death was caused, it is alleged, by his body coming in contact with a 2,400 voltage current of electricity which was negligently permitted to flow into the residence of the deceased by the defendant. At the time of the accident’defendant was engaged in the business of supplying electricity to various customers at Giffords, in the county of Richmond, of whom the deceased was one. The electric current of 2,400 volts was delivered to a transformer placed upon a pole in front of his residence, by two primary wires carrying an alternating current. The office of the transformer was to reduce the 2,400 voltage of the primary circuit to 120 volts, and deliver this voltage-of 120 to deceased’s residence over a secondary circuit consisting also of two wires running from the transformer.
■ The case was tried by plaintiff upon the theory that the transformer was in an imperfect condition, and that because of this condition a deadly voltage of electricity was permitted to pass over the pole of the secondary wire. Plaintiff’s intestate was a strong man ; he went into his cellar in perfect health, and was dead when found lying upon the cellar floor about an hour later, An electric lamp, suspended by an insulated, cord, was lighted. His position was such as to indicate that he had fallen while engaged in lighting this lamp. It was suspended from a nail in the ceiling.to which also was attached á wire hanging down supporting a swinging shelf. There was a burn between the fifth and sixth rib on the left side of deceased’s body, and there was also directly over this a small hole burned in both the outer and undershirt worn by him at the time. Evidence was introduced tending to show that there was a burn on his left foot and also a burn in the stocking and slipper directly over this burn.
The burden of establishing that the accident was the result of defendant’s negligence and that plaintiff’s intestate was -free from contributory negligence was upon the plaintiff, and the verdict will not be sustained unless plaintiff has made it appear with reasonable certainty that the injury was inflicted as a result of defendant’s negligence. A jury cannot be permitted to arrive at a verdict by
It appears that the wire attached to the droplight was defective and not properly insulated at the point where it came in contact with the wire sustaining the swinging or hanging shelf. This wiring was put in the house and maintained by,the deceased, but was only intended to carry a voltage of 120, which was harmless. Defendant contends that it is more reasonable to suppose , that deceased met his death as the result of injuries sustained by falling from a small box standing directly in front of the shelf, and that it is at best but a guess as to whether his death was caused by an electric shock, or a broken neck, occasioned by the fall. If this is cor- - rect, of course the verdict cannot be sustained. It has been held repeatedly, and- is the law of this State, that where the damages have been inflicted by one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff cannot succeed, where it is just as probable that the damage was done by one cause as by the other, but is the learned counsel correct as to the conclusion he reaches % It is true that the cause of death has not been established to an absolute certainty ; no autopsy was held, and Dr. Hutchinson, a witness called ,by defendant, testified that: “In order to tell if a man has died from electric shock, in the first place an autopsy is necessary to eliminate absolutely every other cause of sudden death.” Yet I think the evidence predominates in favor of plaintiff’s theory. It appears that on the night of the accident, and at different times at night antedating the accident, the transformer had been observed to have been surrounded by blue lights and sparkling, and that a buzzing noiáe was at times observed resembling rapid hammering; that on the evening of the accident a blue light was observed where the primary wires came in contact with the trees. The transformer was taken from the pole by the defendant after the,accident, but was produced upon the trial, and evidence is given that it was tested after the accident and worked properly. It appeared, however, that about one-half of an inch of the insulation was gone off the primary wire in the transformer in one place, and that this bare wire was about nine-sixty-fourths of an inch from the iron transformer case. The pole to which this transformer was attached
There was sufficient evidence to warrant the submission of the question of defendant’s negligence to the jury. Defendant maintained this primary circuit, charged with an alternating current of 2,100 volts. This was a deadly force and it was defendant’s duty to exercise a high degree of care to protect the deceased from this current. (Caglione v. Mt. Morris Electric Light Co., 56 App. Div. 191.)
It appears that the primary wires were in contact with trees, and that sparks and blue light were observed at the transformer for some months before the accident, and yet no examination was made of the transformer.
The jury found, after a fair and impartial charge by the learned trial justice, that plaintiff’s intestate was killed b'y reason of a breaking down of the transformer, which permitted the high potential force of electricity to enter the house of the deceased; that this was due to the negligence of the defendant; that deceased was free from any negligence which contributed to his death, and the verdict is supported by the evidence. Deceased was thirty-seven years of age at the time of his death; he was a dentist, and his income from his dental profession was shown to have been from $17,000 to $20,000
The exceptions have keen examined with care, and we find none warranting'a reversal. 1
The judgment and order must, therefore, be affirmed, with costs.
Present — Hirsohberg, P. J., Woodward, Jenks, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.