Hyperlawhypertext legal database McNamee v. Western Union Telegraph Co. 145 N.Y.S. 981

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McNamee v. Western Union Telegraph Co.

145 N.Y.S. 981 Court N.Y. App. Div. Decision date 1914-02-06 English

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p. 981
McNAMEE v. WESTERN UNION TELEGRAPH CO. et al.
(Supreme Court, Appellate Division, Second Department.
February 6, 1914.)

Headnote

Electbicity (§ 18*)—Liability eob Injuries—Contributory Negligence. A party who had seen that a horse had apparently been killed by contact with a wire was guilty of contributory negligence in grasping the wire with his hand, wrapped only in a handkerchief, even though the wire was not then spluttering or emitting flashes. [Ed. Note.—For other cases, see Electricity, Cent. Dig. § 10; Dec. Dig. § 18.*]
Appeal from Trial Term, Queens County.
Action by Elizabeth McNamee, as administratrix of James Mc-Namee, deceased, against the Western Union Telegraph Company, impleaded with others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed on reargument.
p. 982
For order granting reargument, see 144 N. Y. Supp. 1128 .
Argued before JENKS, P. J., and THOMAS, RICH, STAPLE-TON, and PUTNAM, JJ.
Martin T. Manton, of New York City (William H. Griffin, of New York City, on the brief), for appellant.
Albert T. Benedict, of New York City, for respondents.

Plaintiff’s intestate had seen that the horse had been apparently killed by the suspended, wire as he was assisting to get the horse clear, and so observed the deadly effect of the shock. After the wagon had been disconnected, the live wire hung some three or four feet behind the vehicle. He took hold of this wire, and as he approached the sidewalk, walking backwards, received a fatal shock. In his hand grasping the wire was found a red bandanna handkerchief, partly burned. As the dangerous current was shown by the prostrate horse, the plaintiff had knowledge of his risk in touching this wire. Being in the autumn (September), his wrapping the handkerchief about his hand was not from cold or other exposure, but was to protect his hand from the current. As the intestate thus must have realized his danger, his grasping the live wire with only a cotton handkerchief was a plain disregard of common care and caution. Frauenthal v. Laclede Gaslight Co., 67 Mo. App. 1 , also a case of grasping a live wire with a handkerchief. Hence, even if the wire was not then spluttering or emitting flashes, the deceased was guilty of contributory negligence. Thompson on Negligence, § 808; Beach on Contributory Negligence, § 447.

The judgment should be affirmed, with costs.