Opinion
July 25, 1913.
Rutherford B. Meyer, for the appellant.
E. Clyde Sherwood [ Amos H. Stephens with him on the brief], for the respondent.
The plaintiff appeals from a judgment entered against her, dismissing her complaint at the close of her case. The action was brought to recover damages for neglect of the defendant whereby the death of her intestate was caused.
The decedent was employed as an assistant to the engineer in the City Farm Colony, an institution established and maintained by the city of New York. His general work was to make minor repairs to the plumbing, heating and electrical apparatus about the buildings of the colony. On the farm are seventeen buildings, one of which is known as the Burke Building and used as a dormitory, with accommodation for about two hundred aged and indigent women.
The defendant, a public service corporation, supplied electric current for illuminating purposes to the buildings, including the Burke Building. It owned, controlled and maintained a generating plant, poles, wires, transformers and pole conduits. The transformer is a device designed to reduce the voltage, and in this case the reduction was from 2,200 to 110. It was attached to a pole near the building, and from it two sets of wires, encased in leads or mains, carried the low voltage current down the pole and into the building. The wires and connections between the transformer and the switchboard were in excellent condition. In the transformer there were three coils of wire around the high potential coil, operated at 2,200 volts, and two others, each delivering 110 volts, to what is known as the secondary circuit. A witness skilled in electrical engineering found shortly after the casualty one secondary coil intact and the other secondary coil broken down, as to insulation, to the primary winding. He also found that there was an electrical connection between the primary coil, operating on 2,200 volts, and the secondary coil, from which were delivered 110 volts for the operation of the lamps; that the inside of the transformer showed burns on the connection plate, caused by an electric current; that there was a breakdown between the primary winding and the secondary winding; that there was a breakdown between the right-hand primary coil and the right-hand secondary coil; that the two windings are entirely distinct from each other and are separated electrically unless there is such a breakdown; that the tests showed there was a specific breakdown between the primary winding and one-half of the secondary winding, there being two secondary coils in the transformer. The result was to establish on the secondary system of wiring, a wire of which entered the building and connected with the switchboard, a pressure or electric potential equivalent to that on the primary system, namely, 2,200 volts. Twenty-two hundred volts is a fatal force; 110 volts are comparatively harmless.
On the 24th day of July, 1911, at three o'clock in the afternoon, the plaintiff's intestate was working around the kitchen of the Burke Building, repairing a boiler valve. A fellow-workman noticed a blaze coming from a chandelier in the vestibule adjoining the kitchen. The blaze was fanshaped and about eight feet long. The attention of the decedent was attracted to the blaze. He procured a ladder and a patent fire extinguisher and ascended the ladder, bringing the extinguisher with him, and played the extinguisher upon the blaze. The blaze went out and the decedent descended the ladder. There was a resumption of the blaze, the second blaze being about two and a half feet long. A witness was permitted, without objection, to testify that the deceased said he would run down and turn off the switch, and he thereupon suited his action to his word. That was the last his fellow-workmen saw of him in life. The canopy from which the blaze descended was not equipped with bulbs for lighting purposes at the time. The decedent obtained the key to the boiler room from a nurse who was in charge of the building. He came in to her in a hurry and asked for the key. About fifteen minutes afterwards the dead body of the decedent was found by the nurse, lying on the floor of the boiler room, under the switchboard. He had been killed by a deadly current of electricity. His right hand had evidences of deep charred burns, penetrating to the bone. The cause of death was cardiac paralysis, due to contact with a wire charged with commercially prepared electricity. The switchboard was adjacent to the entrance door of the boiler room and was raised about three feet from the floor. The boiler room was about twenty-five feet square and contained two windows, each about twenty-five inches square. The windows were about fifteen feet away from the switchboard, on the opposite side of the room. There was no eye-witness to the casualty.
The secondaries from the transformer were not grounded. A skilled witness did not notice any lightning arresters on the overhead circuit from the farm colony connected with the station. Another skilled witness described and defined a lightning arrester as follows: "A lightning arrester is a device which is connected to line wires which are commonly exposed to the effects of electrical storms. This device carries a wire which is connected to receive, and by certain arrangements of terminals or electro-magnetic means, moving parts or otherwise, the conditions are so arranged that the high frequency lightning discharged, instead of traveling along those wires and proceeding into buildings and expensive apparatus, will be deflected into the ground, and do no damage."
There was evidence that prior to the casualty an electrical storm was in progress, but that the lightning feature of it had subsided about a half hour previously, although the rain continued.
A skilled witness, called on behalf of the plaintiff and adopted by the defendant, testified that at the time he made his examination of the transformer he did not determine from his examination whether the breakdown in the transformer was due to lightning; that there was no primary evidence that lightning struck the transformer; and that there was no lightning indicated in the transformer. He gave his opinion that the lightning struck the primary lines leading to the transformer and then went to the transformer; that the pulling on the switch would have the effect of stopping the blaze from the canopy; and that the switchboard was of ordinary construction. Concerning the testimony of this witness it may be said that, while the plaintiff vouched for his credibility to a certain extent by placing him on the stand, if there was anything in his testimony which operated against her she had the right to claim he was mistaken as to that, to prove the facts as they really were and to ask that such inferences be drawn as were really warranted by the other evidence in the case. ( Quick v. American Can Co., 205 N.Y. 330, 334.)
The plaintiff offered to show by a qualified witness that it was customary for illuminating companies to use a device, not used by the defendant, which would prevent high voltage from flowing from primary to secondary wires and thence into buildings. This was objected to, excluded, and an exception taken. This ruling was erroneous and would of itself require the reversal of the judgment of nonsuit. ( Gray v. Siegel-Cooper Co., 187 N.Y. 376, 381; Dick v. Steel Masonry Contracting Co., 153 App. Div. 651, 654; Flanagan v. Carlin Construction Co., 134 id. 236, 239.)
We are of the opinion that the case as it stood should have been submitted to the jury upon the question of the defendant's negligence and the freedom of the plaintiff's intestate from contributory negligence. Where a corporation, for its profit, assumes to control the distribution of a substance as dangerous to human life as electricity when the current is maintained at a high voltage, it is its duty to exercise at least reasonable care to prevent its escape in a death-dealing manner. ( Braun v. Buffalo General Electric Co., 200 N.Y. 484, 492; Caglione v. Mt. Morris Electric Light Co., 56 App. Div. 191, 193; Paine v. Electric Illuminating, etc., Co., 64 id. 477, 479; Wagner v. Brooklyn Heights R.R. Co., 69 id. 349, 350; affd., 174 N.Y. 520; Morhard v. Richmond Light R.R. Co., 111 App. Div. 353, 356.) When we contemplate the proven defects in the transformer, the absence of a lightning arrester, and the proof of the other circumstances hitherto recited, we are unable to perceive a distinction between this case and that of Morhard v. Richmond Light R.R. Co. ( supra), in which the defendant was held to be negligent.
The force causing the death of the plaintiff's intestate, lethal in its nature unless properly contained, being in the control of the defendant, and the casualty being such as in the ordinary course of the business does not happen if reasonable care is used, proof of these circumstances, regardless of direct proof of defective appliances, affords in the absence of explanation sufficient evidence that the accident occurred from want of care on defendant's part. ( Breen v. N.Y.C. H.R.R.R. Co., 109 N.Y. 297, 300; Griffen v. Manice, 166 id. 188; Clancy v. N.Y. Queens Country R. Co., 82 App. Div. 563, 565; Smith v. Boston Gas Light Co., 129 Mass. 318.) In the case last cited it was held that the escape of gas from the pipes of a gas company was prima facie evidence of neglect.
Upon the issue of contributory negligence the evidence presents as full a disclosure of the facts and circumstances as the nature of the case allows. The burden is, of course, upon the plaintiff to show that her intestate exercised due care, and, although it must be established affirmatively, it need not, in a case where there is no eye-witness to the occurrence, be proved by testimony addressed directly to its support, but may be shown by evidence of circumstances which exclude fault. The switchboard and its appliances were ordinarily harmless. There was nothing to manifest danger at the time of the injury, and the decedent had no reason to suppose that the switchboard or its parts had suddenly become deadly. The decedent was where he had a right to be. He was engaged in a laudable, proper and appropriate service when he pulled the switch. There is nothing that excludes the inference that he acted in the usual manner in operating the switch handle. The question of contributory negligence was for the jury. ( Baxter v. Auburn Syracuse El. R.R. Co., 190 N.Y. 439, 441; Schmeer v. Gas Light Co., 147 id. 529, 541; Braun v. Buffalo General Electric Co., supra; Paine v. Electric Illuminating, etc., Co., supra; Morhard v. Richmond Light R.R. Co., supra; Smith v. Boston Gas Light Co., supra; Illingsworth v. Boston Electric Light Co., 161 Mass. 583, 588.)
In Baxter v. Auburn Syracuse El. R.R. Co. ( supra) the court said: "It is necessary in these cases, when a defendant is sought to be charged with the consequences of the neglect of a duty to exercise care, that the person injured as the result of that neglect shall not appear to have contributed to the injury by his own negligence. It must, affirmatively, appear that his conduct did not so concur with the defendant's negligence, and enter into the incident, as to have become a proximate cause of the injury. He must have exercised that degree of care which was commensurate with the situation. That may be shown directly through the testimony of eye-witnesses; or it may appear from circumstances, which permit the jurors fairly to infer the fact. When, by reason of the death of the injured person, his mouth is closed, the burden, nevertheless, remains upon the complainant, upon whom the cause of action has devolved, to show affirmatively by direct evidence, or from surrounding circumstances, that the deceased was without fault. When the evidence as to how he conducted himself is confined to inferences from circumstances the courts, where the defendant's conduct has been flagrantly violative, in one way or another, of the duty owing, have been inclined to relax the application of the rule as to the quantum of proof, and greater latitude is allowed in permitting the inference of an exercise of ordinary care. If, in such case, the surrounding facts and circumstances reasonably indicate that the accident might have occurred without negligence in the deceased, that inference becomes possible, in addition to that which involves careless conduct, or a willful disregard of personal safety, and thus, as a question of fact, it would be for the jury to decide between the two possible inferences."
I advise that the judgment be reversed and a new trial granted, costs to abide the event.
JENKS, P.J., THOMAS, CARR and PUTNAM, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.