Kelly v. Bergen County Gas Co.

• Decision Date: 17 June 1907
• Citation: 74 N.J.L. 604,67 A. 21
• Parties: KELLY v. BERGEN COUNTY GAS CO.
• Court: New Jersey Supreme Court

67 A. 21

74 N.J.L. 604

KELLY

v. BERGEN COUNTY GAS CO.

Court of Errors and Appeals of New Jersey.

June 17, 1907.

(Syllabus by the Court)

Error to Circuit Court, Hudson County.

Action by Patrick Kelly against the Bergen County Gas Company. Judgment for defendant, and plaintiff brings error. Reversed.

William H. Speer, for plaintiff in error. Bedle, Edwards & Holmes, for defendant in error.

MAGIE, Ch. Upon the opening of the counsel for the plaintiff in the trial of the issue in this cause, the learned trial justice directed a nonsuit. Thereafter judgment for the defendant was entered, and this writ of error was taken. The error assigned was the granting of the nonsuit.

A motion for a nonsuit upon the opening of counsel is not frequently resorted to. In dealing with it, it is obvious that the rule which is applied to a motion for a nonsuit at the close of plaintiff's evidence is the one which should be applied. In both cases, the question presented is whether the facts stated or proved, and reasonable inferences which may be drawn therefrom, disclose that the plaintiff is not entitled to submit his case to the jury, because a verdict in his favor could not be maintained. In practice, a motion for a nonsuit, made upon the opening of counsel, is, perhaps, more liberally treated than an application for a nonsuit at the close of the plaintiff's case. In the former case, if objection be made to a statement too meager to sustain the plaintiff's case, counsel will, doubtless, be permitted to enlarge his statement; but, in the haste required by the pressure of business at the present day, counsel, in general, restrict themselves to a mere outline of the case they design to present. The opening appearing in the bill of exceptions is somewhat meager, and, if objected to on that ground, counsel would, no doubt, have been permitted to make this statement more complete. But I think it does present a case for the jury if the facts stated therein were proved. It appears thereby that the defendant company, which furnishes light to a municipality, maintained wires upon a pole, and through those wires transmitted, at times, a current which was dangerous. Upon the same pole were strung wires of a telephone company by which plaintiff's intestate was employed as a lineman. The nature of the relation between the telephone company and the defendant company was not stated in the opening; but, from the fact that the telephone company was maintaining the wires used in the business of that company upon the pole, it may be reasonably inferred that that company had acquired a right to so maintain them. If that inference were drawn, it would also follow that the telephone company had a right to resort to those wires for repairing and rearranging them. Its workmen, when sent to make repairs or to rearrange the wires, if in such employment they were required to ascend the poles, would not be trespassers, nor would they resort to the summit of the poles out of mere curiosity, but they would be there to exercise the right which their employer had in respect to its wires. It would also follow that the defendant company might be inferred to have knowledge that, in the exercise of that right of the telephone company, the workmen of the latter company would be compelled to ascend the poles and be brought into very close proximity with the wires of the defendant company, and it might be therefrom inferred that a duty devolved upon the company to use reasonable care not to endanger the safety of such workmen by the dangerous current passing through its wires. It has repeatedly been held in this court that corporations maintaining wires which carry strong and dangerous currents of electricity owe a duty to exercise a high degree of care to prevent injury thereby to persons, who, in the exercise of a lawful right, may come in contact with them. A...