143 N.Y.S. 57 | N.Y. App. Div. | 1913
The plaintiff appeals from a judgment entered against her, dismissing her complaint at the close of her case. The action was brought to recover damages for neglect of the defendant whereby the death of her intestate was caused.
The decedent was employed as an assistant to the engineer in the City Farm Colony, an institution established and maintained by the city of New York. His general work was to make minor repairs to the plumbing, heating and electrical apparatus about the buildings of the colony. On the farm are seventeen buildings, one of which is known as the Burke Building and used as a dormitory, with accommodation for about two hundred aged and indigent women.
The defendant, a public service corporation, supplied electric current for illuminating purposes to the buildings, including the Burke Building. It owned, controlled and maintained a generating plant, poles, wires, transformers and pole conduits. The transformer is a device designed to reduce the voltage, and in this'case the reduction was from 2,200 to 110. It was attached to a pole near the building, and from it two sets of wires, encased in leads or mains, carried the low voltage current down the pole and into the building. The wires and connections between the. transformer and the switchboard were in excellent condition. In the transformer there were three coils of wire around the high potential coil, operated at 2,200 volts, and two others, each delivering 110 volts, to what is known as the secondary circuit. A witness skilled in electrical engineering found shortly after the casualty one secondary coil intact and the other secondary coil broken down, as to insulation, to the primary winding. He also found that there was an electrical connection between the primary coil, operating on 2,200
On the 24th day of July, 1911, at three o’clock in the afternoon, the plaintiff’s intestate was working around the kitchen of the Burke Building, repairing a boiler valve. A fellow-workman noticed a blaze coming from a chandelier in the vestibule adjoining the kitchen. The blaze was fanshaped and about eight feet long. The attention of the decedent was attracted to the blaze. He procured a ladder and a patent fire extinguisher and ascended the ladder, bringing the extinguisher with him, and played the extinguisher upon the blaze. The blaze went out and the decedent descended' the ladder. There was a resumption of the blaze, the second blaze being about two and a half feet long. A witness was permitted, without objection, to testify that the deceased said he would run down and turn off the switch, and he thereupon suited his action to his word. That was the last his fellow-workmen saw of him in life. The canopy from which the blaze descended was not equipped with bulbs for lighting purposes at the time. The decedent obtained the key to the boiler room from a nurse who was in charge of the building. He came in to her in a hurry and asked for the key. About fifteen minutes afterwards the dead body of the decedent was found by the nurse, lying on the floor of the boiler room, under the switch
The secondaries from the transformer were not grounded. A skilled witness did not notice any hghtning arresters on the overhead circuit from the farm colony connected with the station. Another skilled witness described and defined a lightning arrester as follows: “ A lightning arrester is a device which is connected to line wires which are commonly exposed to the effects of electrical storms. This device carries a wire which is connected to receive, and by certain arrangements of terminals or electro-magnetic means, moving parts or otherwise, the conditions are so arranged that the high frequency lightning discharged, instead of traveling along those wires and proceeding into buildings and expensive apparatus, will be deflected into the ground, and do no damage.”
There was evidence that prior to the casualty an electrical storm was in progress, but that the lightning feature of it had subsided about a half hour previously, although the rain continued.
A skilled witness, called on behalf of the plaintiff and adopted by the defendant, testified that at the time he made his examination of the transformer he did not determine from his examination whether the breakdown in the transformer was due to lightning; that there was no primary evidence that lightning struck the transformer; and that there was no lightning indicated in the transformer. He gave his opinion that the lightning struck the primary lines leading to the transformer and then went to the transformer; that the pulling on the switch would have the effect of stopping the blaze from the canopy; and that the switchboard was of ordinary construction. Con
The plaintiff offered to show by a qualified witness that it was customary for illuminating companies to use a device, not used by the defendant, which would prevent high voltage from flowing from primary to secondary wires and' thence into buildings. This was objected to, excluded, and an exception taken. This ruling was erroneous and would of itself require' the reversal of the judgment of nonsuit. (Gray v. Siegel-Cooper Co., 187 N. Y. 376, 381; Dick v. Steel & Masonry Contracting Co., 153 App. Div. 651, 654; Flanagan v. Carlin Construction Co., 134 id. 236, 239.)
. We are of the opinion that the case as it stood should have been submitted to the jury upon the question of the defendant’s negligence and the freedom of the plaintiff’s intestate from contributory negligence. Where a corporation, for its profit, assumes to control the distribution of a substance as dangerous to human life as electricity when the current is maintained at a high voltage, it is its duty to exercise at least reasonable care to prevent its escape in a death-dealing manner. (Braun v. Buffalo General Electric Co., 200 N. Y. 484, 492; Caglione v. Mt. Morris Electric Light Co., 56 App. Div. 191, 193; Paine v. Electric Illuminating, etc., Co., 64 id. 477, 479; Wagner v. Brooklyn Heights R. R. Co., 69 id. 349, 350; affd., 174 N. Y. 520; Morhard v. Richmond Light & R. R. Co., 111 App. Div. 353, 356.) When we contemplate the proven defects in the transformer, the absence of a lightning arrester, and the proof of the other circumstances hitherto recited, we are unable to perceive a distinction between this case and that of Morhard v. Richmond Light & R. R. Co. (supra), in which the defendant was held to be negligent.
The force causing the death of the plaintiff’s intestate, lethal in its nature unless properly contained, being in the control of
Upon the issue of contributory negligence the evidence presents as full a disclosure of the facts and circumstances as the nature of the case allows. The burden is, of course, upon the plaintiff to show that her intestate exercised due care, and, although it must be established affirmatively, it need not, in a case where there is no eye-witness to the occurrence, be proved by testimony addressed directly to its support, but may be shown by evidence of circumstances which exclude fault. The switchboard and its appliances were ordinarily harmless. There was nothing to manifest danger at the time of the injury, and the decedent had no reason to suppose that the switchboard or its parts had suddenly become deadly. The decedent was where he had a right to be. He was engaged in a laudable, proper and appropriate service when he pulled the switch. There is nothing that excludes the inference that he acted in the usual manner in operating the switch handle. The question of contributory negligence was for the jury. (Baxter v. Auburn & Syracuse El. R. R. Co., 190 N. Y. 439, 441; Schmeer v. Gas Light Co., 147 id. 529, 541; Braun v. Buffalo General Electric Co., supra; Paine v. Electric Elluminating, etc., Co., supra; Morhard v. Richmond Light & R. R. Co., supra; Smith v. Boston Gas Light Co., supra; Illingsworth v. Boston Electric Light Co., 161 Mass. 583, 588.)
In Baxter v. Auburn & Syracuse El. R. R. Co. (supra) the court said: “It is necessary in these cases, when a defendant is sought to be charged with the consequences of the neglect of a duty to exercise care, that the person injured as the result of that neglect shall not appear to have contributed to the
I advise that the judgment be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.