Hickok v. Auburn Light, Heat & Power Co.

• Decision Date: 27 January 1911
• Citation: 93 N.E. 1113,200 N.Y. 464
• Court: New York Court of Appeals Court of Appeals
• Parties: HICKOK v. AUBURN LIGHT, HEAT & POWER CO.

200 N.Y. 464

93 N.E. 1113

HICKOK

v.AUBURN LIGHT, HEAT & POWER CO.

Court of Appeals of New York.

Jan. 27, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Caroline A. Hickok, as executrix, against the Auburn Light, Heat & Power Company. From a judgment of the Appellate Division (136 App. Div. 907,120 N. Y. Supp. 1128) affirming by divided court a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

See, also, 132 App. Div. 944,117 N. Y. Supp. 1136.William H. Harding, for appellant.

Hull Greenfield, for respondent.

WERNER, J.

In June, 1908, the plaintiff's testator was a deputy sheriff of Cayuga county, and the defendant was furnishing electric light for the courthouse and other adjacent county buildings in the city of Auburn. In a small square or courtyard, which was flanked on the north by the courthouse, on the south by the jail, on the west by the county clerk's office, and on the east by the county stable, there was an electric light pole about 30 feet in height, surmounted by a frame and hood originally equipped with an are lamp, but in June, 1908, containing a single 16 candle power incandescent bulb which was used in lighting the courtyard. In that month the sheriff had a conversation with the plaintiff's testator about the insufficiency of the light on that pole, and the suggestion was made that, if the latter would find a 32 candle power bulb, the former would attach it to the lamp at the top of the pole. No such bulb was to be found upon the premises, and the sheriff thereupon instructed plaintiff's testator to get one and put it on. Such a bulb was later procured, and the decedent was engaged in trying to put it on when he met his death under circumstances which clearly indicate that it was caused by a shock of electricity. The plaintiff, proceeding upon that theory, brought this action, the complaint charging the defendant with negligence in maintaining upon this pole several high tension wires and a transformer which had been carelessly and improperly arranged and connected, without sufficient insulation, thus permitting a dangerous currrent to escape with which the decedent came in contact while engaged in the work of changing or removing the bulb in the lamp at the top of the pole.

The defendant, in its answer, joined issue on the charge of negligence against it, and asserted that the decedent's own negligence was the cause of his death. Thus far the plaintiff has succeeded in convincing the courts and jury that the defendant was guilty of actionable negligence which caused the decedent's death, and that the latter was free from any negligence which contributed thereto. Since the judgment of the Appellate Division was not unanimous, it is our duty to search the record to see if there is our duty to search the record to see if there is any evidence to support the finding of negligence against the defendant and of freedom from contributory negligence in favor of the plaintiff, and if there is such evidence, the judgment must be affirmed. Of course, the logical corollary of this statement is that, if there is an absolute failure of evidence upon either of these essential features of the case, the judgment must be reversed. We think the plaintiff has failed upon both points, and that the judgment cannot stand. A somewhat more extended and critical survey of the facts will disclose the reasons for this view.

The defendant, a corporation engaged in producing and selling electric light, had a contract with the county of Cayuga for the furnishing of light and power to the courthouse and other public buildings in the city of Auburn. For the purpose of carrying out this contract, the defendant had erected the pole referred to in the courtyard, surrounded by the courthouse and the other county buildings above described. This pole, as we have observed, was surmounted by a frame and hood which had been originally used for an arc lamp, but the lamp had been removed and an incandescent bulb put in its place. Below the lamp frame there were two crossarms, one extending north and south and the other east and west. The upper, or north and south crossarm, held six pins and insulators, three of which were on the north side of the pole and the other three on the south. The wires attached to the two insulators farthest from the pole on either side were secondary wires carrying 110 volts for service purposes. The two wires nearest to the pole on the north half of the upper crossarm carried 500 volts, which were used to operate and electric ventilating fan in the courthouse. The two wires nearest the pole on the south half of this upper crossarm were primary wires, which carried 2,000 volts. These wires all extended westerly from the pole, but not easterly. On the lower crossarm which, as we have seen, extended easterly and westerly from the pole and at right angles with the upper crossarm, there was a transformer which was suspended on two iron brackets or braces. and there were also six wooden insulator pins. The pin nearest the pole on the east half of this crossarm had no insulator or wire attached. The second pin on the east side had a heavily insulated secondary wire running northerly to the courthouse. From the pin on the extreme east end of this crossarm, there extended a wire running southerly to the jail, and the west half of this crossarm carried wires to the jail and county clerk's office. From the arc frame, which was above both of these crossarms, there were two wires running easterly to the stables. From this description it is evident that the only wires running in an easterly direction from the pole were the two extending from the frame...