Cappuccio v. Hammonton Electric Light Co.

• Decision Date: 09 November 1922
• Docket Number: No. 44.,44.
• Citation: 118 A. 712
• Parties: CAPPUCCIO v. HAMMONTON ELECTRIC LIGHT CO.
• Court: New Jersey Supreme Court

118 A. 712

CAPPUCCIO

v. HAMMONTON ELECTRIC LIGHT CO.

No. 44.

Supreme Court of New Jersey.

Nov. 9, 1922.

Action by Agata Cappuccio, as executrix, against the Hammonton Electric Light Company. Verdict for plaintiff, and defendant applies for rule to show cause why verdict should not be set aside. Rule discharged.

Argued June term, 1922, before GUMMERE, C. J., and SWAYZE, and TRENOHARD, JJ.

Hutchinson & Hutchinson, of Trenton, for the rule.

Wescott & Weaver, of Camden, opposed.

GUMMERE, C. J. This is an action under the death act. The plaintiffs decedent was an employee of the Hammonton Telephone Company; his work being that of a lineman. In the prosecution of his work he climbed a pole upon which were strung certain telephone wires of his employer, and also certain electric light wires belonging to the defendant corporation; his purpose being to repair one of the telephone wires. While engaged in this work, a portion of his body (the evidence justifies the conclusion that it was his left knee) came in contact with one of the defendant company's electric light wires, with the result that the current therefrom passed through his body, causing a shock so severe that his death resulted a few days later.

The plaintiff had a verdict, and we are asked to set it aside.

The first contention made on behalf of the defendant is that the trial court erroneously refused a motion to nonsuit. It is said that this motion should have been granted for two reasons: (1) That the defendant company owed no duty to the decedent, for the reason that the latter was a mere trespasser upon the pole. The evidence showed that he was not a trespasser. The fact that the telephone company was maintaining upon this pole wires used in its business raised the presumption that it had acquired a right to so maintain them. Accepting this presumption, it follows that the telephone company had a right to resort to those wires for the purpose of repairing them, and its workmen, when sent to make such repairs and when ascending the pole for that purpose, would not be trespassers, but would be there to exercise the right which their employer had in respect to its wires. Kelly v. Bergen County Gas Co., 74 N. J. Law, 604, 67 Atl. 21.

It is further argued that the nonsuit should have been allowed because there was nothing in the proofs submitted by the plaintiff upon which to predicate the existence of negligence on the part of the defendant. But this is immaterial, if on the whole case there was evidence to justify the conclusion that such negligence existed. Benoliel v. Homae, 87 N. J. Law, 375, 94 Atl. 605; Sefler v. Vanderbeek & Sons, 88 N. J. Law, 636, 96 Atl. 1009.

Our examination of the proofs sent up with the rule discloses the existence of such evidence. The...