Braun v. Buffalo Gen. Elec. Co.

• Decision Date: 27 January 1911
• Parties: BRAUN v. BUFFALO GENERAL ELECTRIC CO.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 484

94 N.E. 206

BRAUN

v.BUFFALO GENERAL ELECTRIC CO.

Court of Appeals of New York.

Jan. 27. 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Charles Braun, as administrator of Nicholas Braun, deceased, against the Buffalo General Electric Company. From a judgment of the Appellate Division (132 App. Div. 944,117 N. Y. Supp. 1130) unanimously affirming the judgment of the Supreme Court dismissing the action, plaintiff appeals. Reversed.

See, also, 134 App. Div. 910,118 N. Y. Supp. 1096.Charles Newton, for appellant.

Alfred L. Becker, for respondent.

HISCOCK, J.

While plaintiff's intestate was engaged as a carpenter in the erection of a building on private premises in the city of Buffalo, he took hold of two wires strung and maintained by the respondent across said premises and carrying an electric current of a high voltage. Inasmuch as the insulation on these wires had become ragged and defective, there followed the quite inevitable result-death of the man. The learned courts below have unanimously decided that the intestate was killed without legal responsibility on the part of the respondent for the part which it took in bringing about this result, and in determining whether this conclusion was justified we are called on to consider the rule of care and responsibility, which does govern a company carrying wires charged with dangerous currents of electricity over rpviate premises in the midst of a large and thickly populated city.

The controlling facts which present this question in this case, as they might have been found by the jury, are as follows: The premises where the intestate was at work were part of a lot situate at the corner of Northampton street and East Parade avenue in the city of Buffalo. The entire lot was 30 feet front on Northampton street and had a frontage on East Parade avenue of 150 feet. Some years before the accident a one-story house had been erected, facing on Northampton street and with a yard occupying about 60 feet in depth along East Parade avenue. In the rear of this lot and fronting on the latter avenue, the owner had commenced the erection of what was intended to be a two-family apartment house. This building had been in process of construction for some time, and had reached the point where joists were being laid between the second and third floors at a distance of something over 20 feet from the ground. As far back as 1888 or 1889, the respondent, under a written permission, and so far as appears without compensation, had strung two electric wires for the purpose of furnishing electric light to a summer park nearby. These wires from their terminus in the park were carried to a pole in East Parade avenue, and thence diagonally across the premises in question, so that they were situated directly over the building in process of erection. They had not been in service from November until the date of the accident in March, but nevertheless they were carrying a current of between 2,000 and 3,000 volts. They were from 20 to 24 inches apart and ran about 4 1/2 feet above the joists on which the deceased was working, making a total distance from the ground of 25 or 26 feet. There was nothing to indicate who maintained them. It was discovered after the accident that the insulation at and around the point of contact by deceased had become defective and entirely ineffective to protect a person from the electric current, and so far as appears nothing had been done in the way of inspecting or repairing this insulation during the entire time of the service of the wires as above stated, although it appeared that such insulation as was used would not remain effective for more than three years.

The diameter of an ordinary telephone wire which does not carry a current of sufficient voltage to be dangerous is about one-sixteenth of an inch, without insulation, and the wires in question had a diameter of about five-sixteenths of an inch. The ownership of the premises had changed since the installation of the wires, and, except for the difference in size, there was nothing to indicate, even to an experienced person, that the wires were not telephone wires, or that they were ‘alive’ and dangerous. In fact, the contractor for whom the deceased was at work stated that he took them to be telephone wires. The entire neighborhood, except this one lot, was built up presumably with dwelling buildings. The deceased was called by one of his co-workmen to come and assist in straightening out the joists, which naturally required him to move around on the joists below the wires. He was not seen at the instant when he took hold of the latter, but being attracted by a noise one of the witnesses discovered him with one hand on each wire and hanging down therefrom. Owing to the relative situation of the wires and the joists, it would be natural for one desiring to go from one side of the building to the other to raise the wires, so that he could pass under, or bear down on them, so that he could step over.

The question now presented to us is one of those which, as a general class, are constantly becoming of greater importance. In earlier times the proposition that a man owned all of the space above his land commonly became, after a short distance, one of mere theoretical interest, but with the constantly increasing uses for upper space this is changing, and the subject is continually becoming more and more one of new and practical importance. Recently this court has held, in opposition to earlier authorities, that an action of ejectment may be maintained for the removal of a telephone wire stretched at considerable height over a man's premises. Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716,11 L. R. A. (N. S.) 920, 116 Am. St. Rep. 563.

While the measure of liability of one stringing or maintaining overhead wires conducting a dangerous current of electricity has been frequently under consideration, it may be admitted that it has not been determined under circumstances entirely analogous to those now presenting it, and we are therefore, called on to determine largely by the application of general principles the rule which should be applied.

As a preliminary general consideration, counsel for the respondent, in view of the evidence that the insulation such as was originally placed on the wires would be effective for only three years, argues that it would be a great hardship to require a company, like the respondent to renew this insulation so frequently, and that as a matter of general policy we should not impose any such burden. It is probable that the weight of the burden is somewhat exaggerated, but, however that may be, this argument does not impress us as being very decisive of the rule which should be applied in this or similar cases. It is a matter of common knowledge that a company like the respondent, for its own profit, ordinarily installs and maintains its wires across private premises without compensation. In a large city overhead wires are apt to be numerous, and there are no such marked characteristics of the different ones as would enable an ordinary layman to distinguish between those which are comparatively harmless, like a telephone wire, and those which are charged with a deadly current, like those here. While the convenience of electric and telephone wires is obvious and their maintenance should not be burdened with excessive liabilities, still it seems clear that a company maintaining dangerous wires should not be relieved, on the ground of expense, from the affirmative duty of exercising a reasonable degree of care to maintain proper insulation, and thereby prevent accidents reasonably to be apprehended to those lawfully coming in the neighborhood of such wires.

When we apply general principles of diligence and care to the respondent in this case, its conduct seems to be such that a jury should have been allowed to decide whether or not it was guilty of negligence. rather than that the court should have held as a matter of law that it was not guilty thereof. Little need or can be said about the condition of the wires, for, if the respondent owed any obligation whatever of making them safe, it would scarcely have been more negligent if, instead of allowing them to remain uninspected and unrepaired as it did, it had strung and maintained absolutely naked wires. The only question which is at all close is whether the respondent, in the exercise of reasonable care and foresight, should have apprehended that the premises over which the wires were strung might be so used as to bring people in contact with them, and whether, therefore, it should have guarded against such a contingency. As indicated, I think this was fairly a question for the jury. Here was a vacant lot in the midst of a thickly built-up section of a large city. It was no remote or country lot where no buildings could be expected. The neighboring land was covered with buildings. It was the only vacant lot in the vicinity. It fronted on a street, and there was plenty of space for a building. Now, what was reasonably to be anticipated-that this lot would be allowed indefinitely to lie unimproved and unproductive, or that it, like other surrounding lots, would be improved by additions to the old building or by the erection of new and independent ones? Was it to be anticipated that its use would be an exception to the rule prevailing in the entire neighborhood, or that it would be in conformity therewith? It seems to me that the answer to these questions should have been made by the jury, and that the latter...