227 N.Y. 208, Adams v. Bullock

Citation:227 N.Y. 208
Party Name:LEO ADAMS, an Infant, by MARCY E. ADAMS, His Guardian ad Litem, Respondent, v. GEORGE BULLOCK, as Receiver of the BUFFALO AND LAKE ERIE TRACTION COMPANY, Appellant.
Case Date:November 18, 1919
Court:New York Court of Appeals

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227 N.Y. 208

LEO ADAMS, an Infant, by MARCY E. ADAMS, His Guardian ad Litem, Respondent,

v.

GEORGE BULLOCK, as Receiver of the BUFFALO AND LAKE ERIE TRACTION COMPANY, Appellant.

New York Court of Appeal

November 18, 1919

Argued October 23, 1919.

COUNSEL

Thomas R. Wheeler for appellant. The defendant was not guilty of negligence. The trial court erred in submitting the case to the jury. (Freeman v. B. H. R. R. Co., 54 A.D. 596; Sheffield Co. v. Morton, 161 Ala. 153; Kempf v. S. & I. E. R. Co., 82 Wash. 263; Johnston N. O. T. H. El. Co., 17 L. R. A. [ N. S.] 435; Mayfield W. & L. Co. v. Webb, 33 Ky. L. 909; Graves v. Washington Water Power Co., 44 Wash. 675.)

Murle L. Rowe and Nelson J. Palmer for respondent. The negligence of the defendant was a question of fact

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for the jury to determine. (Hickok v. A. L., H. & P. Co., 200 N.Y. 465; Webster v. Richmond Light & R. R. Co., 158 A.D. 210; Braun v. Buffalo General Electrical Co., 200 N.Y. 484, 492; Caglione v. Mount Morris Electric Light, 56 A.D. 191; Paine v. Electric Illuminating, etc., Co., 64 A.D. 477; Wagner v. Brooklyn Heights R. R. Co., 69 A.D. 349; 174 N.Y. 520; Morhard v. Richmond Light & R. R. Co., 111 A.D. 353.)The defendant was negligent because it maintained a wire carrying a high and dangerous voltage of electricity, unguarded in any manner, at a point in dangerous proximity to a place frequented by pedestrians and used by children as a playground. (Braun v. Buffalo General Electrical Co., 200 N.Y. 484; Wilson v. American Bridge Co., 74 A.D. 596; Wittleder v. Electric Co., 47 A.D. 410; 50 A.D. 478; 219 N.Y. 443; Travell v. Bannerman, 71 A.D. 439; 174 N.Y. 49; Robertson v. Lighting & Power Co., 178 A.D. 720.)

CARDOZO, J.

The defendant runs a trolley line in the city of Dunkirk, employing the overhead wire system. At one point, the road is crossed by a bridge or culvert which carries the tracks of the Nickle Plate and Pennsylvania railroads. Pedestrians often use the bridge as a short cut between streets, and children play on it. On April 21, 1916, the plaintiff, a boy of twelve years, came across the bridge, swinging a wire about eight feet long. In swinging it, he brought it in contact with the defendant's trolley wire, which ran beneath the structure. The side of the bridge was protected by a parapet eighteen inches wide. Four feet seven and three-fourths inches below the top of the parapet, the trolley wire was strung. The plaintiff was shocked and burned when the wires came together. He had a verdict at Trial Term, which has been affirmed at the Appellate Division by a divided court.

We think the verdict cannot stand. The defendant in using an overhead trolley was in the lawful exercise of its

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franchise. Negligence, therefore, cannot be imputed to it because...

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