McMullen v. Edison Electric Illuminating Co.

— This is an appeal from a judgment in favor of plaintiff and an order refusing a new trial. McLoughlin’s Washington street house had been lighted by defendant prior to the time hereinafter mentioned. The electric service wires, in a pipe, passed through the cellar wall about eight feet above the floor, where they,, when in use, were in the usual way, connected with the light distributing wire system of the house. In the summer of 1893 this-house was undergoing repairs, including, among other things, plumbing and rewiring. Before the work of repairs was commenced, defendant’s servant disconnected the service wires from the house-distributing wires. Plaintiff contends that defendant failed to tape or insulate the ends of the service wires, which is denied by defendant. After carefully examining the testimony on this pqint,, we are inclined to think that the weight of evidence is with the defendant, but we will assume it to be the other way, for the purpose of considering the rules of law involved by the respective parties under such assumption. McLoughlin had contracted with one Donovan to do the plumbing work involved in the repairs, and this plaintiff was his helper and employe; so there was no privity of contract between plaintiff and defendant This confronts us with the question of “the right of a third party to maintain an action for injuries resulting from a breach of contract between two contracting parties.” The general rule, which denies such right, is so well established as to require no citation of authorities; but it is-affirmed that this case comes within an exception to such general rule which is equally well established in this state by Thomas v. Winchester, 6 N. Y. 397 ; Coughtry v. Woolen Co., 56 id. 124, and Devlin v. Smith, 89 id. 470. The first of these cases was for-mislabeling a deadly poisonous medicine as a harmless one, and the other two cases were for the negligent construction of very high staging and scaffolding of sufficient strength. The putter-up of the medicine intended that it should be used by those-becoming legally possessed of it, and the builder of such scaffold and staging intended that they should be used by the workmen to be placed upon them. The reason for such exception is well stated in the first case: “The death or great bodily harm of some person was the natural and almost inevitable consequences of the sale of belladonna by means of a false lable; ” and this reason is repeated in the other two cases. Does the case at bar fall within the scope or policy of these authorities? We must answer in the negative, for neither the death nor great bodily harm of any one could be expected from leaving these service-wires in their position untaped. Who would have anticipated that any person would have entered this cellar, mounted upon a box, and, after seeing these wires, taken hold of at least two of them at the same time, in such a manner as to make a short

Judgment and order must be reversed, and new trial ordered, with costs to abide the event.