187 A.D. 720 | N.Y. App. Div. | 1919
Each of the defendants maintains a pole for carrying its wires on the side of the public highway known as South Broadway, in the vicinity of Berkeley Academy, which plaintiff was attending, near the village of South Nyack, in the county of Rockland. On the 12th day of July, 1912, the plaintiff and a schoolmate were climbing these poles, evidently endeavoring to see who could climb fastest or highest, and the plaintiff received, through his left hand, a current of electricity which must have come from a live wire maintained by the defendant Rockland Light and Power Company, which for brevity will be referred to as the power company, on its pole or from a transformer box attached to the pole above the lowest crossarm, and was burned and precipitated to the ground, a distance of twenty or twenty-five feet, and sustained injuries, both from the electric current and the fall, to recover for which he
Mr. Christie, the principal of the Berkeley Academy, testified that the academy was established there as a boarding school for boys on the 15th day of September, 1910; that the average attendance at the school was twenty; that at the
The general manager of the power company testified that when he assumed office on November 11, 1912, after the accident, the poles and wires were in the same condition as they thereafter remained and as they are shown by the photographs introduced in evidence; that the iron steps commenced eight or nine feet from the ground; that the power company’s pole had four crossbars near the top, carrying eight wires, four on the upper arm, carrying currents of 3,300 volts; that the third arm from the top, known as the “ buck arm,” was placed there for service purposes and carried two wires of 110 voltage, and that the lowest arm carried two street lighting wires for transmitting the current to the Berkeley Academy for electric lighting, and that the voltage carried by these wires was probably 2,000; that the wires were insulated and that no change had been made in the insulation since he became
Christie also testified that after the accident he noticed that the electric light wires were insulated with some kind of cloth charged with rubber, and that he noticed “ that some of these wires showed ragged, the cloth is burst up turned in, many places on that wire; ” that a day or two after the accident and after the plaintiff had regained consciousness he said to the plaintiff “ that his injuries were the result of his not heeding my warning; ” and that he could not say that the plaintiff made any reply and that when he made such remarks the plaintiff “ would answer with a smile or something of that sort.” He also testified that he only observed the condition of the wires from the ground but that their ends were turned over, and that they looked ragged with the corners turned up.
One Kouehn testified that the insulation on those wires is what is known as “ weatherproof ” insulation, and appeared to be the same as is universally used by electric fight companies, but that weatherproof insulation is no protection if contact is made with it under such conditions as to set up a circuit, and that to create a circuit it would be necessary also to come in contact with another conductor, and that the use of insulation is being abandoned and bare wires are being used now.
The plaintiff’s aunt testified that she looked at the wires on this pole the next day after the accident and that “ one of them had a distinct crack, and the others were ragged looking.”
' One Greiff testified that he was an electrical engineer and familiar with the construction of electric fight poles and wires at and prior to the time of the accident, and .that practically all high tension wires below 3,300 volts were covered with weatherproof insulation but that some were bare and that it was customary to leave the higher tension wires bare; that proper construction required that the high tension wires should be made inaccessible “to an average person without tools or instruments; ” that they should be securely constructed to prevent falling, and that precaution should be exercised to prevent trees from falling on them; that one precaution to be exercised is to keep the lowest step on the pole out of reach of the average person; that linemen can and do use climbers, consisting of a spike fastened to a strap on the lineman’s leg, but that with respect to transformer poles where there is usually much work required to be done, it is customary to provide the lineman with more security than could be obtained from climbers alone, and that for this purpose it is customary to step the poles down from the top to a point which he can reach by climbers or by being boosted by his helper, or by a practice largely followed, which is for the lineman to drive a spike into the pole temporarily to enable him to climb it and to pull out the spike on coming down; that there are also forms of sockets or removable steps in use, and that short ladders are also used, and that the practice of the Edison Company was to have the steps commence upwards of eight feet above the ground.
The plaintiff read in evidence the power company’s report of this accident to the Public Service Commission in which it was stated that the plaintiff and two other boys were climbing the pole and touched “electric fight wires to see if
Considering the plaintiff’s age, the circumstances under which he was attracted to the poles and came to climb them and his testimony concerning his understanding of the warning given by the principal of the school a month or more before, and that he did not have it in mind at the time — the judgment cannot be sustained on the theory that as matter of law he was guilty of contributory negligence in climbing these poles, which were so equipped with steps for climbing them and stood on the side of the highway between the school playgrounds, unguarded by fence or otherwise, and with no notice of warning of danger thereon or attached thereto.
I am of opinion, however, that no negligence on the part of the telephone company was shown. The injuries to the plaintiff did not result from contact with any of its wires and they did not carry a dangerous current of electricity. The exercise of reasonable care did not require it to foresee that boys would engage in such a climbing contest on these poles and that one starting on its pole might cross over to the other pole and come in contact with a highly charged wire thereon, to his injury. (See Johnson v. City of New York, 208 N. Y. 77; McCloskey v. Buckley, 223 id. 187; Hall v. New York Telephone Co., 214 id. 49; Fitzgerald v. Rodgers, 58 App. Div. 298.)
The position of the power company is quite different, for it thus maintained this pole and wires in the public highway adjacent to this boys’ school and between the playgrounds of boys who from natural impulse are prone to climb, with these steps unnecessarily permanently attached to the pole leading directly from the ground to its live wires, which were insufficiently insulated to prevent the escape of the electric current to such an extent as to cause injury should contact be made therewith in such manner as to produce a circuit. It is not claimed that the power company omitted
Counsel for the power company relies on Walsh v. Fitchburg R. R. Co. (145 N. Y. 301) as holding that in this State there is no liability to a trespasser for the maintenance on one’s own land of a so-called nuisance attractive to children, such as a turntable, and he argues that the pole was on the private property of his client, and that, therefore, the plaintiff in climbing the pole was a trespasser, and that doctrine exonerates the power company from liability. I think there is a material difference between trespassing upon private premises and using private property left unguarded and unattended either temporarily or permanently in a public highway (See McAlpin v. Powell, 70 N. Y. 126; Beck v. Carter, 68 id. 283); and the Court of Appeals has distinctly recognized that the turntable doctrine has not yet been extended to a dangerous appliance in, or a dangerous condition created in, a public street. (See Johnson v. City of New York, supra.) In Barr v. Green (210 N. Y. 252) it was held that a recovery might be had on the theory of negligence but not of nuisance,
Fitzgerald v. Rodgers (58 App. Div. 298) is distinguishable on the ground that the only point there presented for decision was whether a winch which was used in the pubhc street by a contractor in constructing a sewer and left there over night without being so secured that boys could not operate the boom and cable, constituted a nuisance, and the court held that since it was not dangerous if left alone, it was not a nuisance. After construing the complaint as one for nuisance only, the majority of the court observed that the contractor was not bound to foresee that children might be attracted to the winch and, citing Gay v. Essex Electric Street Ry. Co. (159 Mass. 242) approvingly, held that the doctrine of the Walsh Case (supra) is -applicable to apphances lawfully in a pubhc way. That decision has been cited with approval by the Court of Appeals on the point that such use of the winch should not have been foreseen. (Hall v. New York Telephone Co., 214 N. Y. 49, 52.)
It has been held that there is a cause of action where a horse and wagon were left standing unguarded in a pubhc street and a child entered the wagon, as a trespasser in a sense, and was injured through the horse being started by a playmate (Lynch v. Nurdin, 1 Adol. & El. [N. S.] 29); where a child playing in a tree came in contact with a live wire passing through its branches (Temple v. McComb City Electric
Many other authorities are cited, mostly from other jurisdictions, holding liability where the electric current is transmitted along wires over a public way or place, and over private premises as well, and children have come in contact therewith by climbing trees, fences, buildings and other structures, and holding that those in charge of such wires may be held hable on the ground that they should have foreseen that persons riding on high loads might come in contact therewith. (See Benton v. Public Service Corporation, supra; Temple v. McComb City Electric Light & Power Co., supra; Williams v. Springfield Gas & Electric Co., supra; City of Shawnee v. Cheek, 41 Okla. 227; 137 Pac. Rep. 724; Mullen v. Wilkes-Barre G. & E. Co., supra; Meyer v. Menominee & Marinette L. & T. Co., 151 Wis. 279.)
On the facts and authorities cited, I think this is a border case, but I am of opinion that it should have been submitted to the jury to determine, in the circumstances, whether the power company was guilty of negligence in maintaining the steps on its pole so near the ground. Both charges of negligence were, I think, for the jury.
It follows that the judgment as to the power company should be reversed and a new trial granted, with costs to the appellant to abide the event, and as to the other company affirmed, with costs.
Smith, Shearn and Merrell, JJ., concurred; Clarke, P. J., dissented as to reversal of judgment in favor of Rockland Light and Power Company.
Judgment as to Rockland Light and Power Company reversed and a new trial ordered, with costs to appellant to abide event, and as to New York Telephone Company affirmed, with costs.