Karpinski v. Borough of S. River

Citation88 A. 1073,85 N.J.L. 208
PartiesKARPINSKI v. BOROUGH OF SOUTH RIVER.
Decision Date17 November 1913
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Alexander Karpinski against the Borough of South River. From judgment for defendant, plaintiff appeals. Reversed.

See, also, 83 N. J. Law, 149, 83 Atl. 639.

J. A. Kiernan, of Elizabeth, for appellant.

Geo. S. Silzer, of New Brunswick, for respondent.

GARRISON, J. This is an action for damages for personal injuries resulting to the plaintiff from the alleged negligence of the defendant, a municipal corporation. At the trial the plaintiff was nonsuited. The facts the jury might have found were as follows: On July 12, 1911, at about noon, while walking along Whitehead avenue, a public highway of the borough of South River, the plaintiff's hand came in contact with an electric light wire that ran from a pole in the street to a hitching post, to which it was tied. This wire was a part of a new system that was being installed by the defendant for commercial purposes which it was authorized to engage in, and the wire in question was being strung for the defendant by William S. Roth under a contract made with him by the defendant. The electric current that injured the plaintiff was transmitted to this wire by its coming in contact with an old wire maintained by the defendant from which the insulation had worn off, a condition that had existed for some weeks. The plaintiff's hand was badly burned.

The motion that was granted by the court was based upon the single ground that the negligence, if any, was that of an independent contractor; and the question mainly argued upon this appeal is whether or not the independent contractor doctrine applies in this case.

At an earlier stage of the case upon a demurrer to the declaration the Supreme Court held that the declaration was good for the reason that "the operation of an electric lighting plant for the furnishing of light to private consumers for gain cannot, in any sense, be the performance of a governmental function" (citing Bisbing v. Asbury Park, 80 N. J. Law, 416, 78 Atl. 196, 33 L. R. A. [N. S.] 523), and the cases there referred to.

Concretely the decision was that the defendant, a municipal corporation engaged under legislative authority in the business of furnishing electric lighting to private consumers for profit, was liable for the negligence of the agents employed by it to string the wires designed for such commercial purposes.

This conclusion of the Supreme Court, in which we concur, properly laid down the law of the case in this respect, so that the defendant is before us now solely as a corporation enjoying and exercising certain franchise rights in the highway, without regard to its governmental relation thereto.

That the independent contractor doctrine does not apply to negligence in the exercise of such a franchise results from an exception to that doctrine which is thus stated in 26 Cyc. p. 1562:

"Another exception to the general rule is that a person causing something to be done, the doing of which casts upon him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to an independent contractor. For instance, if the duty is imposed upon one by statute or municipal ordinance, he cannot escape liability by delegating the work to an independent contractor."

"This rule is often applied to obstructions and excavations in streets and highways pursuant to authority derived from statute. * * * Corporations have been held liable for the wrongful act of an independent contractor while exercising, with the assent of the corporation, some chartered power or privilege of the corporation; but the liability is limited to wrongs done in the performance of acts which could not hare been...

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12 cases
  • Caporossi v. Atlantic City, New Jersey
    • United States
    • U.S. District Court — District of New Jersey
    • August 7, 1963
    ...governmental duties, with certain exceptions such as proprietary functions and active wrongdoing; e. g., Karpinski v. Borough of South River, 85 N. J.L. 208, 88 A. 1073 (E. & A. 1913) where child injured by electric wire on street, the municipality supplying electric service to private cons......
  • Cloyes v. Delaware Tp., A--269
    • United States
    • New Jersey Superior Court — Appellate Division
    • July 2, 1956
    ...Karpenski v. Incorporated Borough of South River, 83 N.J.L. 149, 83 A. 639 (Sup.Ct.1912), reversed on other grounds 85 N.J.L. 208, 88 A. 1073 (E. & A.1913); whether the municipality derives a profit or merely some benefit or advantage from operation of the enterprise, Olesiewicz v. City of ......
  • Frank Martz Coach Co. Inc. v. Hudson Bus Transp. Co. Inc.
    • United States
    • New Jersey Supreme Court
    • May 15, 1945
    ...and, therefore, is in the exercise of a public franchise or privilege involving risk of harm to others. Karpinski v. Borough of South River, 85 N.J.L. 208, 211, 88 A. 1073; Barrow S. S. Co. v. Kane, 88 F. 197; Venuto v. Robinson, 3 Cir., 118 F.2d 679; Duncan v. Evans, 134 Ohio St. 486, 17 N......
  • Martin v. City of Asbury Park
    • United States
    • New Jersey Supreme Court
    • September 27, 1933
    ...other cases cited should be added: Bisbing v. Asbury Park, 80 N. J. Law, 416, 78 A. 196, 33 L. R. A. (N. S.) 523, Karpinski v. South River, 85 N. J. Law, 208, 88 A. 1073, Lehigh Valley R. Co. v. Jersey City, 103 N. J. Law, 575, 138 A. 467, affirmed 104 N. J. Law, 437, 140 920, Zboyan v. New......
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