Excelsior Elec. Co. v. Sweet

• Decision Date: 14 November 1894
• Citation: 30 A. 553,57 N.J.L. 224
• Parties: EXCELSIOR ELECTRIC CO. v. SWEET.
• Court: New Jersey Supreme Court

30 A. 553

57 N.J.L. 224

EXCELSIOR ELECTRIC CO.

v. SWEET.

Supreme Court of New Jersey.

Nov. 14, 1894.

Error to circuit court, Hudson county; before Justice Lippincott.

Action by William Sweet against the Excelsior Electric Company for personal damages. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued June term, 1894, before BEASLEY, C. J., and DEPUE and VAN SYCKEL, JJ.

Charles W. Puller and H. B. Twombley, for plaintiff in error.

Charles C. Black and Edward Kenny, for defendant in error.

DEPUE, J. Error is assigned upon the face of the record. The damages claimed in the declaration in the ad damnum clause were the sum of $1,000. The verdict awarded the plaintiff $1,457, for his damages. For this discrepancy between the verdict and judgment thereon, and the declaration, it is contended that the judgment should be reversed. The cases cited by the counsel of the plaintiff in error (Lake v. Merrill, 10 N. J. Law, 288, and Hawk v. Anderson, 9 N. J. Law, 319) were decisions on certiorari to the justice's court, and were made before the amendment act The power of amendment conferred by this statute extends to the court in error, and will be exercised where no injury has been done to the party complaining by or through error in mere form. Insurance Co. v. Day, 39 N. J. Law, 89. The statement in a declaration of the sum claimed as damages is purely a matter of form, and an amendment in that respect, if applied for at the trial, would be granted exdebito justitiae. This power of amendment by the court in error extends to matters of substance, as well as of form. If the real question in controversy appears to have been fully and fairly tried and correctly settled, the court on error will not reverse for an objection that might have been avoided by an amendment of the pleadings, but will itself exercise the power of amendment. Ware v. Insurance Co., 45 N. J. Law, 177. This assignment of error must be disregarded.

The remaining assignments of error, 30 in number, were each based upon an exception taken at the trial. The number of these exceptions is due to the multiform manner in which the objections to the conduct of the trial were made and taken. An examination of these exceptions in detail is impracticable. A consideration of the subjects to which they relate will be the most advantageous method of ascertaining whether the substantial rights of the plaintiff in error were infringed upon by the trial judge in his rulings and instructions at the trial.

Briefly, the facts were these: The defendant an electric light and power company, under competent legislative municipal authority, had set up an electric plant in the town of Harrison for the purpose of lighting the streets. One of its lights, an arc light and lamp, located on Harrison avenue, near the railroad bridge, was suspended over and above the street by means of poles, ropes, wires, and pulleys. The lamp was suspended over the street about 15 feet above the surface of the street, and projected out until it reached about the middle of the driveway. The plaintiff, a market gardener, on the 13th of May, 1892, between 9 and 10 o'clock in the morning, was passing along Harrison avenue to market with a load of produce. When he reached a point in the street over which the lamp was suspended, it fell, and struck his horse. The horse was frightened, and ran away, throwing the plaintiff from the wagon, whereby he was injured. The allegation in the declaration was that "the defendant, while it owned and controlled the said electric arc light and lamp, and the pole and ropes and pulleys by means of which the said electric arc light and lamp was hung and suspended, wrongfully, unjustly, willfully, and negligently permitted the ropes and pulleys by means of which the said lamp was hung and suspended to be and become and remain rotten, weak, insufficient, and defective, by reason whereof the said electric arc light and lamp fell upon the horse of the plaintiff, and so frightened and startled the horse of the said plaintiff that the said plaintiff was injured by being thrown from his wagon," etc. To maintain the allegation of negligence, the plaintiff's testimony was directed to the condition and sufficiency of the ropes, the pulley, and the wires. When the plaintiff rested, a nonsuit was applied for; and, at the close of the case, application was made for a direction that there be a verdict for the defendant, on the ground that there was not evidence of negligence sufficient to enable the plaintiff to go to the jury. The denial of these application gave rise to exceptions on which the fourteenth and fifteenth assignments of error were based. The evidence was that the lamp, which weighed 20 pounds, and was suspended over the street, was held by a coarse-grained manilla rope, of three or four strands, and half an inch in diameter, running over an unprotected iron pulley; that, by means of this rope and pulley, the lamp was lowered and raised, from time to time, to replace the carbon points; that the rope, in running through the pulley, had friction against the sides of the sheath to which the pulley wheel was hung, and that it was only a matter of time before the rope must be replaced, or it would replace itself by being broken; that the life of such a rope with such use was from three months to two years. There was also competent evidence given by experts that a manilla rope, such as the one described, was not a proper and safe rope; and it was testified to that, immediately after the lamp fell, the rope was found loosened from the lamp, and frayed out and unraveled for five or six inches from the end. There was also evidence tending to show that the pulley, unprotected as it was, was unsuitable, and that the suspension wires used had not "the stoutness or durability to have a lamp like that hanging on it" The general rule is that the occurrence of an accident does not raise the presumption of negligence; but, where the testimony which proves the occurrence by which the plaintiff was Injured discloses circumstances from which the defendant's negligence is a reasonable inference, a case is presented which calls for a defense. Bahr v. Lombard, 53 N. J. Law, 233, 21 Atl. 190, and 23 Atl. 167. Thus, in Byrne v. Boadle, 2 Hurl. & C. 722, the plaintiff, walking in the public street in front of the defendant's shop, was injured by a barrel of flour which fell upon him from a window above the shop. In Kearney v. Railway Co., L. R. 5 Q. B. 411, L. R, 6 Q. B. 760, the plaintiff, passing along the highway under a railway bridge of the defendant, was injured by the falling of a brick from the top of one of the pilasters on which one of the girders of the bridge rested. And is Mullen v. St. John, 57 N. Y. 567, a building which was in the course of erection by the defendant, fell Into the street, and injured the plaintiff, who was passing by. In each of these cases it was held that from the happening of such an accident, in the absence of explanatory circumstances, negligence will be presumed, and the...