Guinn v. Delaware & A. Tel. Co.

• Decision Date: 20 November 1905
• Citation: 62 A. 412,72 N.J.L. 276
• Parties: GUINN v. DELAWARE & A. TELEPHONE CO.
• Court: New Jersey Supreme Court

62 A. 412

72 N.J.L. 276

GUINN

v. DELAWARE & A. TELEPHONE CO.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1905.

(Syllabus by the Court.)

Error to Supreme Court.

Action by William Guinn, administrator of William C. Guinn, against the Delaware & Atlantic Telephone Company. Judgment for plaintiff. Defendant brings error. Affirmed.

E. A. Armstrong, for plaintiff in error. Peter Backes, for defendant in error.

SWAYZE, J. William C. Guinn, a lad 13 years of age, was killed by contact with a guy wire charged with electricity. The wire was of a character used for telephone construction, copper wire of a tensile strength of 250 pounds. It was attached to a pole on which were strung wires of the defendant alone. There was no proof except by inference that the defendant erected or owned the pole or had attached the wire. In answer to an interrogatory, the defendant stated that the wire had been inspected May 27 or 28, 1904, about three weeks before the injury. No testimony was offered by the defendant. The trial judge left it to the jury to say whether the wire was put there by the servants of the defendant. We think there was sufficient evidence to warrant the inference that such was the fact. The injury was caused by the guy wire breaking and falling on an electric light wire belonging to another company. The broken end fell in the grass in a field belonging to Gulick. Across this field people were accustomed to travel without objection, but as far as appears without other right. The boy's body was found still in contact with the guy wire shortly after the shock. It does not appear that he had any right to be on Gulick's property, except such as may be inferred from the facts stated. The contention of the defendant is that it was under no duty to the decedent for the reason that he was a trespasser on Gulick's property or at best a mere licensee. The liability of the defendant rests upon the fact that it was maintaining wires which might become charged with a deadly current of electricity. New York & New Jersey Telephone Co. v. Bennett, 62 N. J. Law, 742, 42 Atl. 759; Brooks v. Consolidated Gas Co., 70 N. J. Law, 211, 57 Atl. 396.

The duty to exercise care is established as to travelers upon the highway and employés of the defendant or of another company who in the exercise of their rights are likely to come in contact with the wires, and of persons who are lawfully in a place of proximity to the wires. The question presented in this case is whether the duty exists also as to third persons who are not at the time in the exercise of any legal right. The principle underlying the case is stated by Chief Justice Beasley, in Van Winkle v. American Steam Boiler Company, 52 N. J. Law, 240, 247, 19 Atl. 472, to be that in all cases in which any person undertakes the performance of an act which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons, known or unknown, the law, ipso facto, imposes as a public duty the obligation to exercise such care and skill. The test of the defendant's liability to a particular person is whether injury to him ought reasonably to have been anticipated. In the present case, the guy wire was stretched over an open field across which people were accustomed to travel without objection by the landowner. The adjoining field was used as a ball ground. It was probable that, if the guy wire broke, some one crossing the field would come in contact with it. That whoever did so was a trespasser or a bare licensee, as against the landowner, cannot avail the defendant. If a bare licensee, he would still be there lawfully. If a trespasser, his wrong would be to the landowner alone, not a public wrong, nor a wrong to the defendant.

The case differs from one where a trespasser or licensee seeks to recover of the landowner. A...