Hallvlnew York Tel. Co.

• Decision Date: 02 February 1915
• Citation: 108 N.E. 182,214 N.Y. 49
• Parties: HALL vl NEW YORK TELEPHONE CO.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 49

108 N.E. 182

HALL

vl

NEW YORK TELEPHONE CO.

Court of Appeals of New York.

Feb. 2, 1915.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Harlow I. Hall, an infant, by George Hall, his guardian ad litem, against the New York Telephone Company. From a judgment of the Appellate Division (159 App. Div. 53,144 N. Y . Supp. 322) affirming, by a divided court, a judgment of the Trial Term, on a verdict for plaintiff, defendant appeals. Reversed, and new trial granted.

Clarence P. Moser, of Rochester, for appellant.

Thomas A. Kirby, of Albion, for respondent.

HOGAN, J.

This action was brought by the plaintiff, an infant, by his guardian ad litem, to recover damages alleged to have been suffered by reason of the defendant's negligence. The infant at the time of the alleged injury was nine years of age, and resided with his father in the town of Clarendon, Orleans county, N. Y. The defendant was engaged in operating a telephone exchange with telephone lines and equipment on the highways of the town of Clarendon, and on the 25th day of June, 1911, the employés repairs to its lines on one of its poles on the repairs to tis lines on one of its poles on the east side of a public highway of the town, near to the premises occupied by the father of the infant, and in the course of making such repairs used denatured alcohol.

In the work of soldering some wires the employés of defendant used a kerosene blow torch, and the work of soldering was done in a ditch near the side of the road, so that the light of the torch would not blow out. Near the pole on which the work was being done was a small concrete culvert over the ditch at the side of the road. Upon this culvert the men placed a bottle containing the denatured alcohol, and, after completing their work, placed their tools on a wagon and started back to their office in the village of Holley, about one mile distant. They left the bottle of denatured alcohol used in the operation of the torch upon the culvert where they had been using the same. The younger brother of the plaintiff, who was seven years of age, saw the men soldering the wires, and saw them pour the alcohol out of the bottle into their lamp and light it.

On Sunday afternoon the plaintiff and his younger brother, while passing along the highway, saw the bottle of alcohol, and the younger boy picked up the bottle and carried it home. The bottle was an ordinary pint bottle, marked with a label, which was printed in red ink, and contained the words ‘Denatured Alcohol’ and the word ‘Poison’ between skulls and crossbones. When the boys reached home their father and mother were away. They placed the bottle on the porch, and the plaintiff was told by his younger brother that he was going into the house to get some matches and light the ‘stuff’ that was in the bottle. He procured some matches, one of which he gave to the plaintiff, and poured some of the alcohol on the grass outside the house near a swing. The plaintiff lighted his match with the intention of igniting...