Herzog v. Municipal Electric Light Co.

The plaintiff sues as receiver for the benefit of creditors of Joseph Ryan, and in the discussion of the question presented upon this appeal we will designate Joseph Ryan as the plaintiff. The action was brought to recover the damages caused by the destruction of a building on property of the plaintiff by fire on January 4, 1893. The complaint alleged that on the 19th day of July, 1892, the defendant agreed to wire the building 1059-61 Broadway, Brooklyn, for Joseph Ryan; and in consideration of the payment to' it of the sum of $600 agréed to wire the said premises in a good, proper, careful, and workmanlike manner, and to place upon said premises the wires and other necessary electric apparatus, so as to enable the said Ryan to supply the said premises with electric current for lighting the 275 16-candle power lamps which the said defendant agreed to place upon said premises, and said defendant fur

The answer denies that the contract between Ryan and the defendant was correctly alleged; alleges that the only contract or agreement between Ryan and the defendant was contained in a written-agreement consisting of two written instruments, copies of which are annexed to the answer. It admits that the defendant undertook to wire the premises, and to install therein the 275 16-candle power lamps, as provided in the said agreement annexed to the answer, and denies the other allegations of the complaint to which attention has been called. The two writings annexed to the answer are dated July 19, 1892. One is a request to the defendant corporation, signed by Ryan, to connect the main line with and supply the electric current for 275 16-candle power incandescent lamps upon the premises,Nos. 1059-1061 Broadway, Brooklyn, for which Ryan agreed to pay current electric rates. The other, dated the same day, is the order set out in the complaint.

The case has been three times tried. On the first trial the complaint was dismissed, the trial court holding that a clause in the contract which was annexed to the answer was a defense to the action. That dismissal was reversed by this court, the court holding that the question whether both contracts annexed to the complaint were one contract was a question for the jury. 9 App. Div. 573 , 41 N. Y. Supp. 692 . Upon the second trial that question was submitted to the jury, who found a verdict for the defendant. The judgment entered upon that verdict was reversed, and a new trial ordered, upon the ground that the evidence did not justify a finding that the conditions contained in this contract had been complied with so that the defendant was relieved from responsibility. 39 App. Div. 490 , 57 N. Y. Supp. 225 . Upon the third trial one issue was presented, and that was as to the negligence of the defendant. At the end of the case the defendant made a motion to dismiss the complaint, and to direct a verdict for the defendant. The court submitted to the jury four questions. The first question was, “Was the defendant guilty of negligence in August, 1892, in using single cap molding to put up the electric wires upon the ceiling of the upper story of the building leased by Joseph Ryan, and known as No. 1065 Broadway, in the city of Brooklyn, as the business of electric wiring was then

The court below dismissed the complaint upon the ground that the evidence was not sufficient to sustain the special finding of the jury that the defendant was guilty of negligence in August, 1892, in using single cap molding to put up the electric wires upon the ceiling of the upper story of the building as the business of electric wiring was then ordinarily practiced and understood by those conversant with the art, and upon this appeal we have to determine the correctness of this conclusion. The undisputed facts are that the roof upon the plaintiff’s building was completed in June, 1892; that the contract for the electric wiring was made on July 19, 1892; that the defendant’s work under this contract was completed in August, 1892, when the electric wiring and equipment were inspected by inspectors of the New York Board of Fire Underwriters, and approved by them on August 19, 1892; that the electric current was used for lighting the building about September 10, 1892; that in the middle of November, 1892, there was a leak in the roof of the plaintiff’s building, which was repaired; that some time in December, 1892, another leak was discovered; that on January 1, 1893, there was a severe storm, during which the roof of the plaintiff’s building again leaked, and on January 4, 1893, a fire broke out on the top floor of the building, which started in the neighborhood of the wires installed by the defendant, and which resulted in the destruction of the building. There was evidence to sustain a finding that this fire was caused by these electric wires installed by the defendant, and the jury have so found. The question in dispute is whether there was evidence to sustain the finding that the defendant was negligent in installing these electric wires. It must not be lost sight of that we are determining a question which depends upqn negligence in July and August, 1892. It would be manifestly improper to charge the defendant with a knowledge which has been gained by experience subsequent to the time when this work was done. The question that

In connection with the method adopted by the defendant, the plaintiff testified that he told the defendant’s agent that he wanted this wiring done as cheap as he could get it. Hogan, the agent, testified (and this was not disputed by the plaintiff) that his first estimate for doing the work was $650; that the plaintiff objected to that price, and offered $600, which was finally accepted. The plaintiff also testified that in the middle of November there was quite an extensive leak which appeared on the ceiling in the building in which the fire was discovered, at the rear of the skylight, and running along towards the front of the building; that there was a discoloration on the ceiling all the way from the rear end of the skylight down through the passageway; that the molding which covered these electric wires was right over this discoloration; that the discoloration was around and on both sides of this molding and under it; that it was quite a large leak, and the plaintiff had to take up pails and buckets and set them around the floor and spread sawdust on the floor to keep the water from going down to the next floor; that altogether^ half barrel of

We now come to the evidence offered by the plaintiff to sustain his allegation that the defendant in adopting the method that it did was guilty of negligence; and in determining this question, of course, we must assume that the evidence offered by the plaintiff was accepted by the jury. The method adopted by tlie defendant was described by the plaintiff’s witnesses as “single electrical wiring.” The wire used by the defendant was a copper wire, tinned, covered with a coating of rubber, and on top of the rubber a linen tape saturated with rubber. These wires were placed along the ceiling, and covered by a single cap molding, which was of wood, with receptacles in which the wire was placed, and the molding was then nailed to the ceiling of the room; that the wire in general use at that time was subject to abrasion where the insulation cracked; that if there was a break in the insulating material, and there is moisture or metallic contact between the wire and some outside object or substance, there was danger of a leak of the electricity. There was in use for interior wiring at the time what was called double and single cap molding. The double cap molding consists of a strip of wood with a groove in which the wires are laid, and covered by a cap that was nailed on to keep the wires in place. In the single cap molding the groove is in the molding, and this molding is nailed to the ceiling; the difference being that in the double cap molding there was wood between the wire and the ceiling and in the other there was not. The experts called by the plaintiff testified that in their opinion it was not a safe", proper, and workmanlike method of construction on the top floor of a building immediately under the roof to use a single cap molding, because that form of construction was liable to retain any moisture that would leak through the roof, and that holding moisture in a single cap 'molding containing wires attached to these appliances would render it liable to cause fire, because of the escape of electricity.

Upon cross-examination of the plaintiff’s witnesses it appeared that incandescent lighting was first used in New York in 1880 or 1881; that the art of electric lighting from that time on has been a progressive art, and from time to time improvements and changes have been introduced; that during this period in which electric lights have been progressing there have been different opinions held by electricians as to the methods in which wiring should be put up and currents applied and the lighting done, and there has been a good deal of dispute and controversy on these subjects; that single cap molding was in use in New York and in Brooklyn in 1892, and very frequently used; that up to and including July, 1892, the witness knew of but one fire, which was at 848 Broadway, New York, caused by an alternating current, where the wires were supported by a molding against a wooden ceiling; that he was not certain whether that fire was before or after July, 1892; that this single cap molding was used

I have thus detailed the evidence offered by the plaintiff upon which this verdict of the jury was based, and, with the single exception of the statement of one witness that single cap molding had gone out of use in 1892, there is no evidence to show that this method adopted by the defendant was not one in general use at the time this contract was made, or was then considered an improper method. We have the opinion of several witnesses that it was not a proper method, and dangerous, if the grooves in the molding became filled with water; but this is based entirely upon the opinions of these witnesses, in face of the fact that this method was at the time mentioned in use for purposes of this character.

On behalf of the defendant it was proved that the wire used for wiring this building was what is known as “Bishop’s White, Core Rubber Covered Wire,” described by the plaintiff’s witnesses as being the best wire in use. The superintendent of the defendant, who had been such superintendent up to the year 1899, when he was employed in the same capacity by the Edison Company, testified that, in accordance with the practice in vogue in the summer of 1892, there was no distinction drawn with reference to the use of the single cap molding or double cap molding between the ceiling of top stories and the ceiling of other stories in buildings; that during all his experience he never knew of a fire originating underneath a molding, where the alternating current was used; that double cap molding at that time was occasionally used, but had not come into general use. The inspector of the board of fire underwriters testified that he had been inspecting electric wiring for the board of fire underwriters for upwards of 10 years; that in the summer of 1892 he had made frequent inspections of electric wiring installation in New York and Brooklyn for the board of fire underwriters; that he inspected the wiring electrical appliance on the premises of the plaintiff; that he inspected the method by which the wires were put on the walls and ceilings; that he saw the kind of molding that was put up, and saw the place where it was put up; that he was acquainted with this single cap molding, and that it was universally used on the ceiling in dry places; that at that time it was used also on top ceilings as well as other parts of buildings;' that they did not discriminate between the tops and other parts of buildings; that this molding was such as was used for electrical wiring in the summer of 1892. Several witnesses who were experts were called for the defendant, and testified that in the summer of 1892 single cap molding was generally in use in Brooklyn and in New York; that double cap molding, or molding sometimes called “box molding,” had not come into extensive use in the summer of

We have, as the evidence upon which the plaintiff seeks to establish negligence, the testimony of four persons, who were connected with the installation of electrical wiring in New York in 1892, that in their opinion this method adopted by the defendant was dangerous and unsuitable. We have, on the other hand, testimony specifying buildings and instances in which this method was adopted. We have the uncontradicted evidence that with one exception, the date of which is not fixed, no fire had ever occurred in consequence of the adoption of such a method as that used by the defendant, and the fact, which may be said to be undisputed by any substantial evidence, that this was the method generally in use. It is evident that any verdict of the jury that the adoption of this method was negligent would be clearly against the weight of evidence, and should not be allowed to stand.

The question, further, is whether it can be said that there was no evidence to show negligence, so" that the court was justified in dismissing the complaint. It is proper to call attention to the fact that there is no evidence to show that improper materials were used. The evidence is substantially undisputed that the wiring and molding used were of the proper character and of the kind generally in use, the sole criticism upon the defendant’s method being that this single cap molding was used. In fact that a piece of wire produced, which was taken from the wiring used in a stable by this defendant company, is no evidence that such wire was used in the building in question. The statement of the plaintiff, who had" no experience with electric wiring, that the piece of wire produced was of the same character as the wire used in this building, is completely overcome by the testimony as to the character of the wire used, and it is conceded by all of the witnesses that the wire specified by the defendant’s witnesses as used in the building was of the best character and proper for the purpose.

The rule of law applicable to a question of this kind is not in substantial dispute. The defendant was employed to wire "the plaintiff’s house for the purpose of electric lighting. It accepted such em

In Pike v. Honsinger, 155 N. Y. 201 , 49 N. E. 760 , 63 Am. St. Rep. 655 , the Court of Appeals say: -

“The rule of reasonable care and diligence does not require the exercise of the highest possible degree of care, and, to render a physician and surgeon liable, it is not enough that there has been a less degree of care than some other medical man might have shown, or less than even he himself might have bestowed, but there must be a want of ordinary and reasonable care, leading to a bad result. * *■ * The rule requiring him to use bis best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination.”

This same general principle has been applied in cases where the plaintiff’s property was destroyed by fire in consequence of an explosion, or a fire happening upon adjoining, premises in possession of the defendant.' In Cosulich v. S. O. Co., 122 N. Y. 118 , 25 N. E. 259 ,

“The defendant was not maintaining a nuisance. Its business was lawful, and in its conduct the law does not impose the obligation of saving harmless others from the consequences resulting from the occurrence of inevitable accident, but rather burdens it simply with the duty of using reasonable care and caution to save others from injury. If it omitted that duty, and failed to observe that ordinary care which was incumbent upon it, then, because of such neglect, it became legally chargeable with the damages directly resulting therefrom, but not otherwise. As the existence of negligence is an affirmative fact, to be established by him who alleges it as a foundation of his right of recovery, it was incumbent upon the plaintiffs to point out by evidence the defendant’s fault, for the presumption is, until the contrary appears, that every man has performed his duty.”

The same rule is applicable where an employe has been injured by machinery or appliances furnished by his employer. In Harley v. B. C. M. Co., 142 N. Y. 31 , 36 N. E. 813 , this obligation upon the master is stated as follows:

“The master does not guaranty the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known appliances, but only such as are reasonably fit and safe. He satisfies the requirements of the law if in the selection of machinery and appliances he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the master liable, not a mere error of judgment.”

In Reiss v. N. Y. S. Co., 128 N. Y. 103 , 28 N. E. 24 , the same rule was applied in a case much like the present, where the defendant was employed to supply steam by means of a connection in its basement with the mains or pipes under the street, and a system of pipes, valves, and meters set up by it in the basement of the plaintiffs’ building. The defendant’s mechanics put in and adjusted the apparatus in the latter part of June, 1887, and had finished it on Saturday, July 2d. A few days after, when the appliances were first used, a valve was blown off, and steam escaped into the basement, doing damage to the plaintiffs’ goods, for which they sought to recover. The plaintiffs claimed that this valve blew out because the screw by which it was fastened into the valve was too small, and that, therefore, the threads of the screw did not hold; and in holding the defendant not liable the court say:

“If this was the defect, there is no proof that any ordinary care ought to have discovered it. The bonnet and the .valve were made by competent manufacturers, and had been properly tested by them, and the defendant had no reason to expect such an imperfection. When the steam was let on, the 2d day of July, the bonnet and valve proved adequate, and there was no indication from the examination then made of any imperfection or weakness therein, and they were able to stand the pressure to which they were subjected until the time of the explosion, on the 5th day of July. One or two witnesses gave opinions that if the screw had been large enough it would not probably have blown out; but there is considerable other evidence from witnesses shown to be competent to speak upon the subject that, by the formation of what is called a water ram, the bonnet would have been pressed out, even if the screw had been large enough to fit closely and compactly into the valve, and that the pressure would cause an expansion of the nut or valve into which the screw passed, so that it could be blown out without in

juring the thread. The accident was a very unusual one, which had never before happened in the business of the defendant, and it was not bound to anticipate or guard against.”

And it was held that there was no evidence of negligence which justified the court in submitting the question of the defendant’s liability to the jury.

In German Am. Ins. Co. v. Standard Gaslight Co., 67 App. Div. 339 , 73 N. Y. Supp. 973 , we sustained a judgment for the plaintiff where a workman employed by the defendant had been engaged in performing the work that the defendant was employed to do, and thereby caused injury to the plaintiff’s property; but this was based solely upon the negligent act of the defendant in applying a match to locate a leak in the gas pipe in immediate proximity to inflammable material—a very different question from that presented where the negligence charged is in selecting a method of installation of electric wiring, where the most that can" be said is that there was a difference of opinion among electricians and experts as to the best method of doing the work, and where the defendant adopted one of the methods then in general use, and which was approved by experts .skilled in the art.

Applying the rule that obtains in all cases where a defendant is sought to be charged with negligence, we think that the evidence was not sufficient to justify a finding of negligence; that the most that can be said is that the defendant adopted a method which some experts engaged in the business considered to be unsafe, but other experts who were equally competent to judge considered safe, and which yras in general use at that time; and that, if a mistake was made, it was an error of judgment, and not negligence. Taking this view of the case, we think the court below was clearly right in dismissing the complaint, and the judgment appealed from should be affirmed, with costs. All concur, except HATCH, J., who dissents.