Adams v. Atl. City Electric Co.

• Decision Date: 11 May 1938
• Docket Number: No. 47.,47.
• Citation: 120 N.J.L. 357,199 A. 27
• Parties: ADAMS et al. v. ATLANTIC CITY ELECTRIC CO.
• Court: New Jersey Supreme Court

199 A. 27

120 N.J.L. 357

ADAMS et al.

v. ATLANTIC CITY ELECTRIC CO.

No. 47.

Court of Errors and Appeals of New Jersey.

May 11, 1938.

HEHER, Justice, dissenting.

Appeal from Circuit Court, Atlantic County.

Action by Mary Jane Adams, a minor, by Raymond I. Adams, her next friend, and by Raymond I. Adams, individually, and by him as administrator ad prosequendum of the estate of Mary A. Adams, deceased, against the Atlantic City Electric Company, for injuries and death resulting from a collision between an automobile and defendant's electric pole. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Thompson & Hanstein and Walter Han-stein, all of Atlantic City (Mark Townsend, Jr., of Jersey City, of counsel), for appellant. Garrison & Weaver, of Atlantic City (William I. Garrison, of Atlantic City, of counsel), for respondents.

PERSKIE, Justice.

This is an action in tort. Appellant, Atlantic City Electric Company, who was the defendant below, appeals from a judgment, on a jury verdict originally in the sum of $40,000, in favor of the infant plaintiff, Mary Jane Adams, for personal injuries which she sustained while an occupant of an automobile which collided with a pole belonging to appellant, and which pole carried wires for the transmission of electricity of high voltage. On a rule to show cause, upon the sole ground that it was excessive, the verdict was reduced to $30,000, and as so reduced was formally accepted for the infant plaintiff. Appellant also appeals from the judgment, based upon the verdict of $1,464.80 returned by the same jury in favor of the father of the infant, Raymond I. Adams, for his consequential damages.

John Adams, a minor, was graduated from the Atlantic City High School. His cousin, Emily Finley, who resided near Cape May Court House, N. J., was also graduated. Emily's mother planned a joint party at her home to celebrate the graduation of both children. Notwithstanding the fact that John was affected with "valvular lesions of the heart" and had been forbidden by his physician to drive an automobile, (although a few days before the accident his physician told him that as between driving to Philadelphia or Cape May, he had better drive to Cape May), John did in the late afternoon of June 17, 1936, drive a car, owned by his father, and used for business and family pleasure, to attend the party at his cousin's home. John had his father's consent. With John were his mother, Mary A. Adams, who sat on the front seat, and his sister, Mary Jane Adams, about 13 years of age, who sat on the rear seat. In order to reach his cousin's home John had to and did travel part of the way over state highway No. 4, from Swainton to Cape May Court House. This highway, it appears, is surfaced with concrete to a width of about 20 feet. On each side of the concrete there is a gravel shoulder to the width of about 7 feet which, on the day in question, was surfaced with either some road oil or bituminous substance that rendered the shoulders fit and suitable for vehicular traffic.

Appellant is engaged in the business of selling electric power or current; it conducts its business, among other places, in Cape May county. In the pursuit of its business, appellant erected, maintained, and controlled certain poles upon which were strung wires for the purpose of transmitting its electric current along state highway No. 4. It also maintained substations at Ocean View, about 71/2 miles from the scene of the accident, hereinafter described, and at Wildwood and Cape May. The current, estimated at 66,000 volts, is generated at its main plant at Deepwater, on the Delaware river. At the Ocean View substation it was reduced to 22,000 volts and sent over the transmission lines to the Wildwood and Cape May substations, where it terminates in circuit breakers protected by relays, and where the current was further reduced to 440-220-110 volts, being the amount suitable for home and store use. The interconnecting lines between Ocean View, Wildwood, and Cape May substations are known as a loop circuit. This loop circuit provides alternative service from the Ocean View substation to either the Cape May or Wildwood substation. Thus if the Wildwood line from the Ocean View substation is disconnected at both ends, electric power is supplied to the Wildwood substation over the Cape May line. Similarly, if the Cape May line is disconnected at both ends, current would be supplied from the Ocean View substation over the Wildwood line. Each of these substations contains modern, automatic oil circuit breakers operating upon relays and thus connected with the lines. These relays, operating through electric impulses, are of two kinds, one known as a time delayed relay and the other as an instantaneous relay. Their function is to open the circuit breaker and de-energize the line when a fault or abnormality on the line occurs.

As John, his mother, and sister were riding along said highway No. 4, and about 71/2 miles from the Ocean View substation, the car, for some unexplained and unproved reason, skidded or turned off the road to the right, into a field or grass plot, then took a diagonal or southeasterly course back towards the roadway, but, before reaching it, collided with appellant's pole No. 1382. This pole was set within the 50-foot right of way of said highway and 1.9 feet west from the westerly edge of the gravel shoulder and usable part of the highway. It was a western red cedar pole, 45 feet in length, weighed 1,100 pounds, carried three cross-arms on which rested six No. 2/0 bare copper wires of a tensile strength of 5,226 pounds, carrying 22,000 volts of electricity. The lowest wire was 36' 6" above the ground level. As a result of the impact between the car and the pole, the pole was fractured and splintered at a point about 5 feet above the ground and the base thereof was moved l1/2 feet, thus causing a hole in which the front right wheel of the car rested. The front axle and running board of the car rested upon the ground and jammed up against the pole which had a lightning rod affixed thereto.

The results to the occupants of the car were tragic. The car became highly energized, by reason of the electric current passing through it to the ground. The mother died before she was removed from the car, and there was evidence indicating that she sustained a broken neck and a fracture of the base of her skull. John died 2 days later without ever regaining consciousness. Mary Jane was so horribly burned by electricity that the second, third, fourth, and fifth fingers of her left hand dropped off at the first joint and all the toes of her right foot dropped off completely, devitalizing the tissues. In addition, she was otherwise severely burned in and about her limbs and body. A plastic operation was necessary and performed. The skin was pulled over the end of the fingers and toes so that they would be made reasonably presentable.

We mark the fact that as a result of this accident, which happened on June 17, 1936, about 6 p. m. (D. S. T.) two separate suits were instituted. In one suit, Mary Jane Adams, by her father as next friend, sued for the injuries which she sustained; the father sued for the consequential damages which he sustained. The father also sued as administrator ad prosequendum for the alleged wrongful death of his wife. In the other suit John J. Palmer sued to recover for the injuries which he suffered as the result of electric burns while in the humane act of attempting to extricate the mother from the car. No action was instituted for the death of John. The two suits were tried together. The jury returned verdicts in the amounts already stated in favor of the infant plaintiff and her father; it returned a verdict of no cause of action for the death of the mother. From that judgment there is no appeal. It also returned a verdict of $25,000 in favor of Palmer which, on a rule to show cause, was reduced to $18,750, but as so reduced was not accepted and this cause is now awaiting retrial.

Under its 16 grounds of appeal, appellant now argues that the judgments recovered by the infant plaintiff and her father, sole respondents here, be reversed for the reasons that the learned trial judge erred in refusing to nonsuit and to direct a verdict; in admitting certain evidence; in certain phases of his charge; and in refusing to charge certain of appellant's requests to charge.

A proper consideration and disposition of this argument requires, in limine, a brief analysis of the issues involved.

Many and varied are the acts of negligence, as alleged in paragraph 4 (as amended) of the complaint, upon which plaintiffs sought to impose liability upon appellant. More specifically, however, the acts of negligence alleged consist of two major charges. First, plaintiffs charged that appellant was negligent in that it maintained within the boundaries of public highway No. 4 its transmission wires on a pole which by reason of decay had become weakened, unsound, and insecure for its intended uses and purposes and that the appellant had knowledge of the unsuitable condition of the pole. Second, plaintiffs further charged that appellant was negligent in that it failed to discontinue promptly the transmission of deadly electric current through or over its wires which were supported by the unsuitable pole after it had received notice of the existence of trouble or of some abnormal condition on its wires. Plaintiffs further charged that the negligence in each instance was the efficient and proximate cause of the injuries and loss suffered by them.

Generally stated, appellant denied the alleged acts of negligence; it denied that either act charged was the efficient and proximate cause of the injuries and loss sustained by plaintiffs. Appellant pleaded contributory negligence and assumption of risk; it further sought to avoid liability upon the theory that it had fully discharged its duty towards the plaintiffs in...