Beck v. Monmouth Lumber Co.

Citation137 N.J.L. 268,59 A.2d 400
Decision Date13 May 1948
Docket NumberNo. 31.,31.
PartiesBECK v. MONMOUTH LUMBER CO. et al.
CourtUnited States State Supreme Court (New Jersey)

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Appeal from Supreme Court.

Action by Helen M. Beck, administratrix ad prosequendum of the estate of Harry Beck, deceased, against Monmouth Lumber Company and Public Service Electric & Gas Company to recover for death of plaintiff's decedent who was killed upon contract with electric wires while repairing a crane. From a judgment for plaintiff, defendant appeal.

Affirmed.

O'Brien, Brett & O'Brien, of Newark (Thomas J. Brett, of Newark, of counsel), for plaintiff-respondent.

George F. Lahey, Jr., of Newark, for Monmouth Lumber Co.

Carl T. Freggens, of Newark, for Public Service Electric & Gas Co.

WACHENFELD, Justice.

This action was instituted to recover damages for the death of Harry Beck, killed upon contact with electric wires of the Public Service Electric and Gas Company, hereinafter called ‘power company,’ while repairing a crane of the Monmouth Lumber Company, hereinafter called ‘lumber company.’ The appeal is taken by both defendants from a judgment of $35,000 entered against them.

The lumber company owns a tract of land 100 feet wide and 400 feet long in open country where it operates a hopper for the mixing of concrete. A mobile crane with a 65-foot boom was generally operated between the hopper and the railroad tracks on the right side of the property to unload freight cars but was also used to raise lumber and machinery. A long conveyor was constructed to the tracks to feed the hopper. A road enters the property from a nearby highway and runs between the other side of the hopper and the left property line. Two 35-foot poles carry telephone wires to the left side of the property and thence to a small shed next to the hopper.

In the latter part of October 1945 the lumber company applied to the power company for power to operate two 220-volt electric motors and the power company erected one 45-foot pole on the property, and using the two telephone poles, strung uninsulated wires carrying 4,150 volts, which voltage was to furnish current for the motors. The wires were strung approximately 29 feet to 33 feet above the ground, the lowest point being 26 feet at a sag between the last telephone pole and the pole erected by the power company on the property.

Before and during erection of the power lines the distribution inspector of the power company inspected the property several times to plan the installation, at which times the crane was on the property. The district superintendent of the power company inspected the property after installation and admittedly saw the crane.

Thereafter the limber company contracted through its plant manager with Behrend to repair the crane's brake system on Saturday and Sunday, November 3 and 4, 1945, on which days the lumber company did not operate. Behrend and Beck, experts on cranes, were partners in the business. To assist in the repairs the lumber company moved the crane to the road leading to the hopper, with the boom down about 6 feet from the ground and 20 feet to the nearest overhead wire.

After the repairs were completed Behrend, Beck and an assistant decided to test the crane by lifting a one-ton bucket attachment lying i5 feet away on the other side of the wires. There was testimony indicating they did not know that the wires were uninsulated and carried high voltage, and there is no dispute that they were not warned to this effect verbally or otherwise by any agent or representative of either of the defendant companies although some of them were fully cognizant of the actual situation that existed.

The repairmen talked over the necessity of ‘watching out for the wires' but this apparently had reference to their desire not to knock them down. The length of the boom made it impossible to maneuver it under the wires without striking either the pole or the conveyor and the crane could not be easily moved since the caterpillars were defective and additional motion might cause further damage. The crane was locked 6 feet above the wires and the slack of 20 to 25 feet of cable pulled to the ground. Beck and the assistant, intending to attach the slack cable to the bucket, walked under the overhead wires, when they suddenly fell. The cable had come into contact with the overhead wires and Beck was instantly killed by the electric current.

Electrical experts testified open wire pole lines were widely used all over the country but admitted that where it was probable persons might come into contact with the wires they should be insulated or carried underground. The trial court allowed an expert witness for the respondent to testify that from good and safe engineering practice a dangerous situation is created where a crane with a boom rises 10 feet above charged, uninsulated wires and that the hazard so created should be reduced by insulating the wires or eliminated by placing them underground.

Motions for nonsuit and directed verdict were made upon the ground that there was no proof of negligence on the part of either appellant; that their negligence, if any, was not the proximate cause of Beck's death; and that the evidence conclusively established contributory negligence and assumption of risk as a matter of law upon the decedent. The denial of these motions is the subject of this appeal.

The appellants also argue that the trial court erred in admitting respondent's expert testimony and also in several of its charges to the jury and in its refusing to adopt certain requests to charge.

Whenever error is alleged in refusal to nonsuit and to direct a verdict, both contentions may be resolved into a determination of the latter, because if evidence competent to take the case to the jury is received after refusal to nonsuit, any error in such refusal is cured. Cappuccio v. Hammonton Electic Light Co., 98 N.J.L. 6, 118 A. 712; Schreiber v. Public Service Co-ordinated Transport, 112 N.J.L. 199, 169 A. 629. Furthermore, in passing on both motions the trial court cannot weight the evidence but must take as true all testimony which supports the view of the party against whom the motions are made. Skiba v. Hmieleski, 106 N.J.L. 597, 150 A. 334.

The general rule has been stated that where an instrumentality employed for private benefit is a peril to others the proprietor thereof, while not an insurer against loss that may accidentally occur, must exercise a high decree of care in its management or use. Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 19 A. 472. Similarly, whoever uses a highly destructive agency such as electricity is held to a correspondingly high degree of care toward all persons who in the exercise of their lawful right may come in contact with it. Anderson v. Jersey City Electric Light Co., 63 N.J.L. 387, 43 A. 654, 655.

Although these cases vouch a high degree of care, the responsibility defined and actually imposed is the use of reasonable care consistent with the dangerous instrumentality employed and a proper anticipation of the results which could be reasonably foreseen. In Van Winkle v. American Steam Boiler Co., supra, it is stated that a person maintaining a dangerous instrumentality ‘is responsible only for negligence or want of skill in its management or use.’ In Anderson v. Jersey City Electric Light Co., supra, on demurrer to a declaration alleging negligence the court stated:

‘The demurrer admits, in effect, that the defendant knew that the plaintiff would enter the shaft, and work in the vicinity of its wires, and that it did not use reasonable care to render them safe in view of their location, whereby the plaintiff was injured.

‘A good cause of action is thus stated, and the demurrer is overruled.’

The Court of Errors and Appeals in Adams v. Atlantic City Electric Co., 120 N.J.L. 357, 363, 199 A. 27, 30, 726, reiterates and confirms the doctrine of high degree of care and then states that the duty to be fulfilled means more than employment and use of approved mechanical appliances and includes circumspection and foresight with due regard to reasonable probable consequences: ‘The principles of law applicable to these issues are well settled. Whoever uses, controls, or manages a highly destructive agency (electric current) is held to a correspondingly high degree of care. Anderson v. Jersey City Electric Light Co., 63 N.J.L. 387, 390, 43 A. 654; Heyer v. Jersey Central Power, &c., Co., 106 N.J.L. 211, 214, 147 A. 452. And while the degree of care which is required is that which is exercised by persons of ordinary prudence under same or like circumstances, and while the adoption and operation of a method which accords with that in general use by well-regulated companies and approved by experience is a due performance of duty and care owed (Heyer v. Jersey Central Power, &c., Co., supra, 106 N.J.L. 211, at page 213, 147 A. 452 [at page 453], and cases cited), the care to be exercised, the duty to be fulfilled, means more than the mere employment and use of approved mechanical appliances. Rather does it mean the exercise of that degree of care, of that manner of fulfillment of duty, which comprehends a circumspection, a foresight, a prevision which has due and proper regard to reasonably probable contingencies.’

The test of liability is whether under the particular circumstances injury ought reasonably to have been anticipated. Guinn v. Delaware & A. Tel. Co., 72 N.J.L. 276, 62 A. 412, 3 L.R.A.,N.S., 988, 111 Am.St.Rep. 668; Barnett v. Atlantic City Electric Co., 87 N.J.L. 29, 93 A. 108; McGinnis v. Deleware, L. & W. R. Co., 98 N.J.L. 160, 119 A. 163. As was said in Robbins v. Thies, 117 N.J.L. 389, 393, 189 A. 67, 71: ‘Now it is the duty of an electric company that maintains and controls wires charged with a deadly current of electricity in a place where it is likely that persons, known or unknown, will come in contact therewith, to use reasonable care to maintain...

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