78 F. 74 (3rd Cir. 1896), 9, Newark Electric Light & Power Co. v. Garden

Docket Nº:9.
Citation:78 F. 74
Party Name:NEWARK ELECTRIC LIGHT & POWER CO. v. GARDEN.
Case Date:November 30, 1896
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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78 F. 74 (3rd Cir. 1896)

NEWARK ELECTRIC LIGHT & POWER CO.

v.

GARDEN.

No. 9.

United States Court of Appeals, Third Circuit.

November 30, 1896

John O. H. Pitney, for plaintiff in error.

Aaron V. Dawes, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and WALES, District Judge.

DALLAS, Circuit Judge.

This action was brought in the circuit court for the district of New Jersey by the administrator of the estate of James A. Mason against the Newark Electric Light & Power Company, for causing, by its negligence, the death of Mason. There were a verdict and a judgment for the plaintiff, and thereupon the defendant sued out this writ of error. The usual defenses were set up in the court below. Negligence on the part of the defendant was denied, and contributory negligence on the part of the deceased was asserted; but upon these subjects, considered separately and apart from the fundamental question, to be presently dealt with, the majority of the court has experienced no difficulty.

There is no specific criterion of care which could have been applied in this case. Neither the defendant nor Mason disregarded any determinate provision of the law prescribing what the conduct of either of them should have been, for there is no such provision.

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The only rule which they, respectively, were bound to obey, is the general one which enjoins the exercise of due care,-- the observance of such caution as, under the circumstances, an ordinarily prudent man who would have observed. Whether either of them failed to perform this indistinctly defined obligation, assuming its existence on the part of the defendant, was a question of fact and of inference. The facts were controverted, the inference was disputed, and the evidence was not conclusive. Therefore, unless the case should have been entirely withdrawn from the jury, upon the underlying question about to be considered, no error was committed in submitting to it the issue as to negligence, both as respected the defendant and the plaintiff's intestate. The specifications, other than the third, which will be especially referred to, need not be further discussed. Although the charge of the court is, perhaps, open to some criticism, it exhibits no reversible error, if not upon the one important and quite distinctive subject to which attention is now to be directed.

There is no liability for negligence where there is no duty of care. Consequently, a plaintiff who grounds his action upon an allegation of negligence by the defendant must show, not only that the conduct of which he complains was negligent in character, but also that it was violative of some duty which was owing to him. That the conduct of this defendant was not careful, and that its lack of care, and not any negligence of Mason himself, was the cause of the death of the latter is established by the verdict; but, as we have said, the whole subject of negligence was inconsequent if, under the law and the evidence, the defendant was under no obligation to regard Mason's safety. The primary, separate, and controlling question upon this record, therefore, is: Was the defendant bound to exercise care-- 'ordinary care,' as the court below held-- to provide against the occurrence of such a calamity as befell Mason? That this inquiry of the law should be based upon a correct conception of the facts to which it is to be applied; and those which are pertinent to this particular subject may be briefly stated.

The Western Union Telegraph Company was the owner of a certain telegraph pole, upon which the Pennsylvania Railroad Company rightfully maintained several electric wires, immediately supported upon three cross arms. The defendant company, also rightfully, maintained two wires, supported, one on either side of the same pole, upon a single cross arm. How is this right, in either case, was acquired, is unimportant. There is no doubt that, in both, it existed, and that, in fact, the pole was lawfully used, not only by its owner, the telegraph company, and by a certain telephone company, but also by the railroad company and by the defendant. There were 12 cross arms in all, including the two temporary ones hereafter mentioned. The lowest was that which sustained the wires of the defendant, and above, at a distance of several feet, was one of those upon which were the wires of the railroad company. In the space between these two bars were those in use by the telephone company, and below the latter, and above that of the defendant's company, two new ones were inserted by the railroad company, to facilitate the

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transfer of its wires; and Mason was one of several men employed by that company, who, upon the occasion in question, were engaged in making that transfer, which consisted in removing its wires from the poles of the telegraph company (including the pole which has been specified) to certain other poles, which belonged to the railroad company itself. Mason ascended this pole, and placed himself finally-- what he had previously done is immaterial-- in the situation which he occupied when he met his death. His right foot was upon one side of the cross bar, on which there was an electric wire of the defendant. This foot, however, was not, and did not become, in contact with the wire. It rested at a point sufficiently removed from it to be free from danger. In point of fact, the accident did not result from the position of his right foot, for the fatal connection was made through his left foot, which was thrown over the next bar above, the lower of the two new bars, and was 'dangling down towards the lower bar,' the one upon which was the defendant's wire. While in the position described, a telephone wire was handed to Mason by a fellow workman, and in reaching out to grasp it, his pendent left leg was naturally, perhaps necessarily, extended towards the wire of the defendant, and, in consequence, his left foot either touched it, or came so near to it that, by reason of the thus electrically connected interposition of his body between that wire and the telephone wire, which he had seized in his left hand, he was subjected to the shock which killed him. 1 The defendant's...

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