Bennett v. New York & Queens Elec. Light & Power Co.

• Decision Date: 01 June 1945
• Citation: 62 N.E.2d 219,294 N.Y. 334
• Parties: BENNETT v. NEW YORK & QUEENS ELECTRIC LIGHT & POWER CO.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 334

62 N.E.2d 219

BENNETT

v.NEW YORK & QUEENS ELECTRIC LIGHT & POWER CO.

Court of Appeals of New York.

June 1, 1945.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Vera Bennett, administratrix of the estate of John Bennett, deceased, against New York & Queens Electric Light & Power Company for damages for wrongful death. From a judgment in favor of defendant, entered Dec. 6, 1944, upon an order of the Appellate Division of the Supreme Court in the Second Judicial District, which reversed on the law a judgment of the Supreme Court in favor of plaintiff entered upon a verdict rendered at Trial Term, Walsh, J., and directed a dismissal of the complaint on the law, 268 App.Div. 915, 51 N.Y.S.2d 278, plaintiff appeals.

Judgment of appellate division reversed and that of Trial Term affirmed.

LEHMAN, C. J., dissenting. Joseph F. Hanley and Richard P. Charles, both of Brooklyn, for appellant.

John M. Keegan, of Long Island City, and Thomas H. Beardsley, of New York City, for respondent.

LEWIS, Judge.

In the course of excavation upon a sewer project in the city of New York the boom attached to a caterpillar crane moved close enough to one of defendant's overhead high voltage wires to produce a short circuit which electrocuted plaintiff's intestate. By the present action damages are sought by the decedent's widow, as administratrix, who claims her husband's death was caused by the defendant's negligence in the operation and maintenance of its high tension electric lines.

A judgment in plaintiff's favor entered upon a jury's verdict at Trial Term has been reversed on the law at the Appellate Division where findings of fact implicit in the jury's verdict were considered and affirmed. Upon her appeal to this court the plaintiff asserts that the facts adduced upon the trial and affirmed by the Appellate Division presented a question which was properly submitted to the jury, viz., whether the fatality resulted from the defendant's negligent failure properly to safeguard workmen of whom the decedent was one who, to the knowledge of the defendant, were within a zone of danger created by its high tension wires.

The accident occurred on 164th Street between 71st and 72d Avenues in Queens County. At that point a caterpillar crane, on which was mounted a boom forty feet in length, was engaged in removing timber sheathing from a sewer trench which had been freshly dug in the northbound lane of traffic. The trench itself, which had been back-filled with loose earth, was parallel to and twenty-five feet west of the easterly curb along which the defendant had erected poles and had strung six high tension wires. Of these wires the one most westerly and thus nearest the caterpillar crane was thirty-four feet above the ground and carried electricity of 2,300 volts. Because the back-filling had left soft earth in the trench the operator had so stationed the crane that its weight of twenty-two tons had the support of solid ground east of the trench and was thus brought closer to the easterly curb above which defendant's wires were strung. While the crane boom was being raised and lowered in the process of extracting sheathing timbers from the trench and depositing them on trucks, the decedent while standing on the ground was seen to take hold of a chain attached to the boom cable and used to lash the timbers. Although there is positive testimony by one of the plaintiff's witnesses that the cable did not touch the defendant's wire it appears that when the decedent grasped the chain a ‘buzzing’ sound was heard, a flashing light was seen between the cable and the wire for a substantial period of time, and there was ‘blazing’ in the chain. In the meantime the decedent had fallen to the ground. He had met his death when the oscillating boom and its...