Barnett v. Atl. City Electric Co.

• Decision Date: 04 March 1915
• Citation: 87 N.J.L. 29,93 A. 108
• Parties: BARNETT v. ATLANTIC CITY ELECTRIC CO.
• Court: New Jersey Supreme Court

93 A. 108

87 N.J.L. 29

BARNETT

v. ATLANTIC CITY ELECTRIC CO.

Supreme Court of New Jersey.

March 4, 1915.

(Syllabus by the Court.)

Appeal from Court of Common Pleas, Atlantic County.

Action by John J. Barnett, administrator, etc., of Edward N. Barnett, deceased, against the Atlantic City Electric Company, a corporation. Prom a judgment for plaintiff, defendant appeals. Affirmed.

Argued November term, 1914, before TRENCHARD, BERGEN, and BLACK, JJ.

W. Holt Apgar, of Trenton (William W. Smithers, of Philadelphia, Pa., on the brief), for appellant Babcock & Champion, of Atlantic City (Charles S. Moore, of Atlantic City, on the brief), for respondent.

TRENCHARD, J. The plaintiff's intestate was a fireman in the employ of the fire department of Atlantic City. He responded in the nighttime to an alarm of fire in the tower of the city hall. Whilst there, in the performance of his duty as a member of the fire department, he came in contact with a metal pipe, charged with a deadly current of electricity, which had escaped from wires installed and maintained by the defendant electric company, and was killed by an electric shock. This action, brought to recover for his death, resulted in a verdict for the plaintiff, and, from the consequent judgment, the defendant appeals. We are of the opinion that the judgment must be affirmed.

The motion to nonsuit and to direct a verdict for the defendant were properly denied. They are both upon the same footing, since the defendant offered no evidence. Both were based upon these grounds: (1) That there was no evidence of defendant's negligence; (2) that the plaintiff was guilty of contributory negligence; and (3) that there was no evidence of pecuniary injury to the next of kin.

We think the question of the negligence of the defendant was for the jury. It was open to the jury to find from the evidence, if they saw fit, that the wires leading to the arc lamps in the tower designed to light the face of the "tower clock" were installed and maintained by the defendant company in a negligent and unsafe condition; that a deadly current of electricity escaped therefrom to and through a metal pipe, with which the decedent, in the performance of his duty, came in contact; and that the defendant, through its superintendent, had actual notice, long before the accident, of the unsafe condition of the wires.

The defendant company, however, earnestly contends that it owed decedent no duty, save that it should not wantonly or willfully cause him harm. It relies upon the rule that, in the absence of any statutory provision to the contrary, a member of a fire department, who enters a building in the exercise of his duties, is a mere licensee, under a permission to enter given by the law, and the owner or occupant of the building owes him no duty to keep it in a reasonably safe condition. 29 Cyc. 452; Kelly v. Henry Muhs Co., 71 N. J. Law, 358, 59 Atl. 23. But we think this a misapprehension. The decedent was not upon property either owned or controlled by the defendant company, and the same rule does not apply to him as applies to one who goes upon the property of another with or without permission. The only right the defendant electric company had in the tower of the city hall was a right to place its wires and lamps in the tower. It was entitled to permanently occupy no more space for that purpose than was necessary for the lamps and wires and any devices used to maintain the wires in a safe condition. It had no right or permission to occupy the whole of the tower.

The liability of the defendant, if such there be, rests upon the fact that it was maintaining in a negligent and unsafe condition wires which were charged with a deadly current of electricity. Brooks v. Consolidated Gas Co., 70 N. J. Law, 211, 57 Atl. 396; New York & New Jersey Telephone Co. v. Bennett, 62 N. J. Law, 742, 42 Atl. 759. The question presented is: Did the defendant owe any duty to the decedent, a member of the fire department, to exercise reasonable care in the maintenance of such wires? The underlying principle is that in all cases, in which any person undertakes the performance of an act which, if not done with skill and care, will be highly dangerous to the persons or lives of other persons, known or unknown, the law ipso facto imposes as a public duty the obligation to exercise such care and skill. Van Winkle v. American Steam Boiler Co., 52 N. J. Law, 240, 19 Atl. 472. The test of the defendant's liability to a particular person is whether injury to him ought reasonably to have been anticipated. Guinn v. Del. & Atl. Tel. Co., 72 N. J. Law, 276, 62 Atl. 412, 3 L. R. A. (N. S.) 988, 111 Am. St. Rep. 668. In the present case the wires were maintained in a place where people, with the permission of the city, might lawfully go. It was likely or...