Kennealy v. Westchester Electric Railway Co.

Majority

p. 293

John Kennealy, Respondent, v. Westchester Electric Railway Company, Appellant.

Headnote

Negligence—duty of care required of an electric railway company towards an employee of a contractor engaged to paint its poles—evidence as to the condition ■ of its wires previous to the accident inferred from their subsequent condition—■ ■ charge that, if in doubt, the jury must render a verdict for the defendant.-

An electric street railway company which enters into a contract for the painting Of its trolley poles, must use reasonable care to protect, against injury, the workmen employed by the contractor to perform the contract.

p. 294

Where, in an action brought by such a workman against the electric street railway company to recover damages for personal injuries which the workman sustained because of the defective insulation of one of the defendant’s wires, evidence is given that the condition of the wire remained unchanged from July 22, 1899, the day on which the accident occurred, to October 14, 1902, the day-When the action was tried, the jury may infer that the condition of the wire remained unchanged from the time it was put up until the day of the accident, an interval of a year. In such an action the court may properly refuse to charge the following proposition: “ If the jury is in doubt, if the evidence is equal on both sides, the Verdict shall be for the defendant,” as,- even if the jury were in doubt, they were ■ not- obliged to find a verdict for the defendant.

Appeal by the defendant, the Westchester Electric Railway Company, from a judgment of the Supreme'Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of October, 1902,' upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Bayard H. Ames and Henry A. Robinson [Theodore H. Silk-an and Arthur Ofner with them on the brief], for the appellant.

Michael J. Tierney [John J. Crennan with him on the brief], for the respondent.

The plaintiff has recovéred á verdict of $5,000 damages for severe injuries to his arm, caused by coming in contact with a feed wire Upon the defendant’s trolley system while engaged in sandpapering one of the supporting poles, preparatory to painting the same. The plaintiff was employed by a contractor who had entered into' á contract with the defendant to paint- the supporting poles. The measure of the defendant’s obligation to á workman under these circumstances was to use reasonable care for his protection against injury. (Wells v. Brooklyn Heights R. R. Co., 67 App. Div. 212 , and cases there cited.) The theory of the plaintiff’s case was that the accident was due to the defective insulation of the feed wire at a point a short distance from the supporting pole, where his elbow came in contact with it,' and, in view of the: language of the complaint, the trial court held that no negligence could be predicated

p. 295

■upon any fail tire properly to maintain and inspect the feed wire after it was put up, but that the defendant’s failure of duty, if made •out at all, must be based upon defective construction in the first instance. In this view, the plaintiff was required to establish that the alleged defective insulation of the feed wire, if it existed in fact, was a condition existing at the time the wire was placed upon the pole as a part of the original construction. The jury were instructed to pass specifically upon this question, and answered it in the affirmative. The defendant now insists that there was no evidence suffi-cient to sustain an adverse finding in this respect.

There was proof in the case which would authorize a finding that the insulating covering of the feed wire was lacking at the point where the plaintiff claims to have received his injury ; but it is conceded that the wire had been in place about a year, and the ■appellant contends that evidence showing that the insulation was -defective at the time of the accident did not justify the inference that the defect existed at the time of the original construction, inasmuch as there was proof that the action of the wind, causing the wires to sway, had a tendency to wear away the covering material at certain points. ■ I think, however, that such inference might ■fairly be based upon the testimony offered in behalf of the defendant itself. One of the defendant’s witnesses, a lineman named Lafayette R. Baut, testified that there had been no change in the feed wire or the construction at the pole, where this accident occurred, since the occurrence of the accident down to the time of the trial. The feed wire, he said, was in the same condition, exactly the same, as it was in 1899, when he examined it immediately after the accident. The trial took place on October 14, 1902. If the ■condition of the pole and wire had remained unchanged from July 22, 1899, the day when the accident occurred, to October 14, 1902, the day of the trial, the jury might certainly infer that it remained unchanged from the time it was put up, a year previous to the day ■of the accident, up to the time of the accident.

It is not necessary to discuss the point made in regard to the ■alleged contributory negligence of the plaintiff, or his assumption of the risks involved in the employment, further than to say that the-proof on these branches of the case not only justified, but required, the submission of both issues to the jury.

p. 296

. At the close of the charge, just before the jury went out, defendant’s counsel requested the court to charge as follows: “ If the jury is in doubt, if the evidence is equal on both sides, the verdict shall be for the defendant.” The learned trial judge refused to charge, this proposition, and the defendant’s counsel excepted. The refusal . was not error. The request involved two propositions : (1) That if the jury were in doubt, the verdict should be for the defendant; and (2) that if the evidence was equal on both sides, the verdict should be-for the defendant. The first of these propositions was incorrect.The mere existence even of a reasonable doubt in the minds of jurors in a civil case does not require them to find for the defendant. The second proposition, that if the evidence was. equal on both sides, the verdict should be for the defendant, was -correct,, but the trial court was not bqurid to give that instruction, coupled as. it was with the previous erroneous proposition of law. He had already charged the jury fully in -regard to the burden which, the. law imposed upon the plaintiff to establish his case by a preponderance of evidence; and this, under the circumstances, was sufficient...

The judgment should be affirmed..

; Present — Goodrich, P. J., Bartlett, Hirschberg, Jems and Hooker, JJ. ,

Judgment and order unanimously affirmed, with costs.

Cases cited

Wells v. Brooklyn Heights Railroad 67 App. Div. 212 N.Y. App. Div. 1901-12-23 p. 294