69 A.D. 349 | N.Y. App. Div. | 1902
The appellant contends, first, that the evidence failed to establish a cause of action, and, second, that the plaintiff perforce of a pass lost any right of action.
First. The plaintiff was a lineman of the police department of the city of New York, of thirteen years’ experience in service of the city of Brooklyn and of its said successor. At the time of the accident his duty called him to repair a broken police telegraph wire. This wire was" carried on the elevated railroad structure of the defendant, which charged rent to the city for such privilege. While at his work underneath the structure, he was injured by a shock of electricity, which, he contends, had escaped from a trolley feed wire carried upon such structure by the defendant, The negligence imputed is that the defendant suffered such wire to become uninsulated, defective and dangerous, so that the electric current escaped therefrom. In the absence of any provision of restraint in the letting to the city of New York, I think that such-privilege would contemplate the right of reasonable access by the city to its wires in order to make any necessary repairs in the maintenance of its lines. Indeed, it appears that it was customary for the city to send its linemen on the structure for such purpose. On the occasion in question the plaintiff had been sent by his superior to repair a break, and his duty required him to^go upon the structure. I think, therefore, that the plaintiff -was neither a trespasser nor a bare licensee, but an employee of the city lawfully engaged about the business of his master. (Wells v. Brooklyn Heights R. R. Co., 67 App. Div. 212, and authorities cited; Illingsworth v. Boston Electric Light Co., 161 Mass. 583, 587.) The obligation of the defendant to him certainly was that of ordinary care, which required the exercise of such care both in the stringing and in the
Second. The contention that the plaintiff, by his stipulation, lost any right of action is based upon the fact that the defendant issued to the employees of the city the following card :
“ Brooklyn Elevated Railroad Company.
“ 31 Sands Street.
“No. 3J1. “ Brooklyn 12 —1,1898.
“ All Employes:
“You will allow Charles A." Wagner, employed by Police Department, to pass through station and on to structure free of charge, but you will not allow him free transit on trains.
“ This permit expires 12 — 31 — 98.
“ J. D. BARTON,'
“General Superintendent.”
The following is printed on the reverse side of this card: “The Person receiving this Permit accepts and uses it with the express-agreement that he will assume all risk and liability of accident, and in no event hold the Brooklyn Elevated Railroad Company responsible for any injury to person or property however caused. It must be presented to Agent and Gateman upon entering any station, and also presented upon demand from any employee of this company.” The card was not signed.
This card permitted the plaintiff to pass through the elevated railway station without paying his fare. The authorities cited by the learned counsel for the appellant are those which, in this State, recognize the power of common carriers to contract against their liability for negligence. But there was no relation of passenger and carrier between the parties at the time. The plaintiff was upon the structure attending to duties incidental to the business of his master who, for compensation charged by the defendant, had obtained from the defendant the right to suspend its own wires on ' the structure. He was not there by virtue of any contract between him and the .defendant as a common carrier or between liis- master and the defendant as a common carrier. Incidental to its business as a common carrier, the defendant maintained a structure, and, as owner thereof, it rented this right of support to the master of the
But in' any event, the plaintiff did not gain access by means of this card. He climbed .up onto the structure. He testified that it was “ a common thing to climb up at this point upon the structure by getting on top of a car (street surface car) and going up.” This was the method employed by him to réach the place of the break. And he also testified that he had reached such a place by ascending' the iron pillars of the fabric.
No other questions presented require detailed consideration, and the judgment and order should be affirmed, with costs.
All concurred, except Woodward, J., dissenting.
Judgment and order affirmed, with costs.