Ennis v. Gray

— The action is brought to recover damages for injuries due to negligence. The plaintiff, a roofer by trade, was at work on a cornice over a liquor store at the corner of Twenty-third street and Third avenue, in the city of New York, which was owned, as were the premises, by one McCaffrey. There -was, upon the south end of the cornice, an iron box, a converter or transformer, used to change a high-tension electrical current of 1,000 volts, to a low-tension current, maintained and operated by the defendant. The cornice was two feet two inches wide, and the distance between the converter and the wall was fourteen and one-quarter inches. The space between the converter and the westerly edge of the cornice was one and three-quarters inches. The converter was connected by wires to a cable in a stand-pipe coming up from the street at the south end of the cornice. Those wires wmre joined from the standpipe to two fuse boxes upon the top of the converter, the primary wires hanging between the converter and the wall of the house. The plaintiff was on his knees, facing south, and had in his hand a small whisk broom, with which he was sweeping the tin roof around the northeast corner of the converter. He received a shock, and became unconscious. He was found with his clothes in'flames, lying upon the wires between the converter and the wall. That his injuries were serious and* justified the damages as reduced by the court is not disputed. Neither were exceptions taken to the admission or rejection of evidence, nor to the judge’s charge, the de

The first question, therefore, is, had the plaintiff, when he rested, made out a prima facie case of negligence ? It appeared that the wires which caused the damage were exposed to contact by any one who went to the south end ,of the cornice, and that they were in front of a window, between the wall of the building and the converter, and this arrangement of the box and wires was characterized, by an electrician who went to the place of the accident, as improper. The evidence also tended to show that the wires were improperly insulated, the insulation having worn off in five places on the primary wires ; that at one point there was a bad splice, entirely uninsulated; and that the defective insulations were old. Such evidence, we think, made out a prima facie case of negligence, because it tended to support two grounds relied on by the plaintiff, viz. that the wires were improperly placed, without safeguards, and were improperly insulated. It is insisted by appellant that there were no contractual relations or other privity between plaintiff and defendant which required the latter to protect the former from iujury while he was working for Mc-Caffrey, and while he was on McCaffrey’s premises, and in support of such insistence our attention is called to the well-settled rule that, in order to maintain an action for injury arising from neglect, it must appear that there was a legal duty from the peison inflicting the iujury to the person on whom it was inflicted, and that such duty was violated; that a mere general duty to the-public is not sufficient, but it must be a special duty to the individual inj ured. Reliance is placed upon the cases of McAlpin v. Powell, 79 N. Y. 130 ; Victory v. Baker, 67 id. 368, and Cosulich. v. Standard Oil Co., 122 N. Y. 118 ; 33 St. Rep. 287 . In the first case cited (McAlpin v. Powell), where a child of a family in a tenement house was injured by falling through a trap in a fire-escape which was improperly secured, it was held that, it having only been put up for a fire escape, to be used for the protection of life in case of danger from fire, and not being intended and never » used as a balcony, the owner owed no duty to the tenant or his family to keep the platform of the fire escape in such repair that it might be used as a balcony ; and the distinction is there pointed out between that case and the one requiring a party to protect a structure on his own property which is dangerous to others. In Victory v. Baker, supra, where a boy lost his life by falling into a vat of boiling water in defendant’s factory, whither he had gone by direction of his employer, it was held that the manner in which the owner of the factory chose to use or appropriate his property could not be questioned, and if in the lawful exercise of his right, and without negligence on his part, a third person sustains injury from this use by the owner, the owner is not answerable. The

“ The defendant was not maintaining a common 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.”

There being no evidence of negligence, except such as it was insisted should be presumed from the proof of the explosion, it was held that such proof was not sufficient to authorize an inference of negligence, and for that reason it was error not; to have granted the motion for a nonsuit.

None of these cases, upon the facts here appearing, is in point. These were all cases where inj ury resulted from the use of premises belonging to the party sought to be charged, and that caused the injury to persons to whom was owing no obligation, either of •contract, duty, or service, and were controlled by the well-settled law that “ a man may upon his own lands build factories and dams, and employ the use of machinery, without liability for any damage which* may accidentally and unavoidably ensue.” Without quarreling with, the rule invoked by the appellant, or the cases •cited by him, we think the facts here presented sufficiently show ithe distinction. The defendant .was engaged in the business of supplying electricity for lighting purposes in houses and streets of the city, and, considering the high voltage which it was necessary to carry over the wires, thus rendering the business in the highest degree dangerous, unless handled with care and skill, we think that, outside of any contractual relation, a duty was created on the part of the defendant, not only towards the public generally, who, in the streets, might be likely to come in contact with the wires, but also with respect to any individual engaged in a lawful occupation in a place where he was entitled as of right to be. The relation and obligation of-parties are accurately expressed in Heaven v. Pender, L. R. 11 Q. C. B. 503, the substance of which is, that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary prudence would recognize that if he did not use ordinary care and skill in his own conduct with regard to these circumstances he might cause injury to the person or property of the other, á duty arises to use ordinary care and skill to avoid such danger. Here "the defendant was engaged in placing wires in the streets, and making connections with houses intended for occupancy, and as

It is claimed, however, that in view of the testimony given by the defendant the motion for a new trial should have been granted upon the ground that the verdict was against the weigh t of evidence. We have examined the record, and while it is true the witnesses for the defendant outnumbered those for the plaintiff, we do not think the weight of evidence so clearly preponderated in defendant’s favor that the court would have been justified in granting the motion for a new trial. If anything, the plaintiff’s case was strengthened by the showing that a change was made in the manner of construction between the time of tlie accident and the trial; and upon cross-examination of defendant’s expert as to the relative safety of the two modes of construction, such evidence tended to show that the present construction is safer than that which existed at the time of the accident. We think, therefore, that the question as to whether the defendant exercised ordinary care in the constitution and maintenance of the electrical converter and its appliances was, under proper instructions, to which no exceptions were taken, properly submitted as a question of fact to the jury.

A further question is presented, considering the nature of the accident, whether, merely from its happening, a presumption of negligence, did not arise. As said in Breen v. N. Y. C. & H. R. R. Co., 109 N. Y. 300 ; 14 St. Rep. 885 :

“There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as in the ordinary course of business does not happen if reasonable care is used, it does, in the absetice of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.”

And, as said in Millie v. Manhattan Railway Co., 5 Misc. Rep. 301 :

“Since every man is presumed to discharge his duty, it results that whoever asserts negligence in another must prove the fact, and must prove it by a preponderance of evidence. But there are cases in which the maxim ‘res ipso loquitur' applies, — that is to say, in which the very occurrence itself imports negligence. The specific question here is whether the occurrence in controversy carries with it an imputation of negligence against the defendant with the effect of imposing upon the appellant, the burden of repelling this prima facie presurnption of negligence.”

So here we might ask whether the happening of this accident does not carry with it an imputation of negligence, it being self-evident- that, if the wires had been properly insulated, it would not have occurred, and it being equally clear that with the exercise of

The only other ground relied upon by the defendant is that the plaintiff by his own negligence contributed to the injury. The question having been submitted to the jury under proper instructions, and there being ample evidence to sustain their finding thereupon in plaintiff’s favor, we should not interfere with the Verdict reached. The judgment should be affirmed, with costs.

All concur.