Manning v. Public Service Elec. & Gas Co.
| Citation | 156 A.2d 260,58 N.J.Super. 386 |
| Decision Date | 04 December 1959 |
| Docket Number | No. A--458,A--458 |
| Parties | Benjamin MANNING, Plaintiff-Appellant, v. PUBLIC SERVICE ELECTRIC AND GAS CO., a corporation of New Jersey, Defendant-Respondent. |
| Court | New Jersey Superior Court – Appellate Division |
Jerry M. Finn, Newark, argued the cause for plaintiff-appellant (Greenstone & Greenstone, Newark, attorneys).
Luke A. Kiernan, Jr., Newark, argued the cause for defendant-respondent (Herman H. Wille, Jr., Newark, of counsel).
Before Judges PRICE, SULLIVAN and FOLEY.
The opinion of the court was delivered by
FOLEY, J.A.D.
In this negligence case plaintiff appeals from a judgment entered in the Law Division on a jury verdict of no cause of action.
On May 24, 1956 plaintiff, a masonry worker in the employ of Puratex Stone Co., was engaged in resurfacing the front of a building situated on the westerly side of Grand Avenue in Palisades Park, New Jersey. The work required him and a coworker to operate from a scaffold which was suspended at its northerly end by ropes attached to the upper part of the building and at its southerly end was rested on the railing of a fire escape platform. In order to supply these workmen with mortar, two other men mixed it on the ground and then raised it by means of a rope and pulley apparatus. Plaintiff, in reaching for a bucket thus raised, received a severe shock when the bucket came in contact with an adjacent uninsulated high tension wire which was maintained by the defendant. The wire carried approximately 4,000 volts. The shock stunned him and he lost his balance and fell to the ground. Defendant had no knowledge that work was being performed in the vicinity of its high tension wires until after the accident occurred.
The theory of liability advanced by plaintiff was that defendant was negligent (1) in having violated the requirements of the National Electrical Safety Code () with respect to the installation and maintenance of uninsulated high tension wire, and (2) in having violated a common law duty to exercise a high degree of care to install and maintain the wire in such manner and at such place as to avoid foreseeable injury to those who themselves were in the exercise of reasonable care. The Code was adopted by the Board of Public Utility Commissioners pursuant to R.S. 48:2--23, N.J.S.A. and was in force at the time of the accident. Pertinent provisions follow:
'Sec. 23. Clearances.
'234. Clearances of Conductors of One Line From Other Conductors and Structures.
'C. Clearances from Buildings--* * *
'4. Conductors Passing By Or Over Buildings. (a) Minimum Clearances. Unguarded or accessible supply conductors carrying voltages in excess of 300 volts between conductors shall not come closer to any building or its attachments (balconies, platforms, etc.) than listed below, except that this rule should not be interpreted as restricting the installation of a trolley contact conductor over the approximate center line of the track it serves
'Table 4. Clearances of supply conductors from buildings.
In connection with the construction of this regulation Section 20, subsection 202 has bearing:
'Note: Some of these minimum values are exceeded in much existing construction; service requirements frequently call for stronger supports and higher factors of safety than the minimum requirements of these rules.'
There is no dispute as to the relative position of the essential objects. The platform of the fire escape, suspended at the southern end of the building, extended horizontally three feet from the building to a railing. In addition, there was a seveninch horizontal extension created by a decorative bow which was attached to the exterior of the railing. The railing extended vertically from the base of the platform 37 inches. Of this, four inches were composed of another decorative curved structure. The boom of the aforementioned hoisting apparatus was attached to the roof at the northern end of the building and extended 22 inches out from the front of it. The bucket was approximately 30 inches at its wides point. The wire, part of a four wire system, was: four feet eleven inches from the face of the building; approximately two feet from the outermost edge of the fire escape; and was six feet three inches in a vertical plane from the top of the railing excluding the elevated bowed decorative portion of four inches. The face of the building was in a north-south plane and the wires, running parallel thereto, were supported by poles erected along the curb in front of the building. The scaffold was 18 inches wide and approximately 20 feet long. Plaintiff and the hoisting mechanism were at the northern section of the scaffold at the time of the accident. The fire escape at the southern section was in no way involved in plaintiff's activities. The wires in question were 33 1/2 feet above the ground, thus satisfying another section of the Code which required a minimum height of 20 feet.
The initial problem presented to the trial court was one of construction of the Code. Specifically, the question was: Do the 'minimum clearances' provided in section 23, subsection 234, require Both a horizontal clearance of three feet and a vertical clearance of eight feet from the building, or was it intended that these should be considered as alternative requirements, in the sense that the vertical clearance applies only to wiring passing over the 'building or its attachments (balconies, platforms, etc.),' all other installations, including that here involved, being subject only to the necessity of a three-foot clearance from the side of the building and structures attached thereto? The court reached the latter conclusion, held as a matter of law that the defendant's installation conformed with the Code requirements since the wire was in excess of three feet from the side of the building at the point where plaintiff was working, and expressly charged the jury to this effect. Thus the court removed violation of the Code as a ground on which the jury might predicate liability and confined the determination of defendant's negligence to whether or not defendant had violated its common law duty as above set forth.
It is urged by the plaintiff that the elimination from the case of the alleged violation of the Code constituted a judicial usurpation of the function of the jury. It is argued that upon the basis of certain conflicts in the expert testimony to which we will hereinafter refer the jury should have been permitted to decide whether the Code contemplated as minimum requirements both a horizontal clearance of three feet and a vertical clearance of eight feet, rather than either the one or the other. But this contention runs afoul of the principle that within their allotted sphere the rules and regulations of a state administrative agency duly promulgated under properly delegated powers have the force and effect of law, State v. Atlantic City Electric Co., 23 N.J. 259, 270, 128 A.2d 861 (1957); from which it follows that the construction of such rules and regulations is subject to the fundamental concept that the interpretation of a statute is for the court, not the jury.
No doubt this branch of the plaintiff's argument is founded on the fact that one of plaintiff's experts, Isaac Stewart, testified that the wire was in violation of the Code because it was less than eight feet above the guard rail of the fire escape and less than three feet from the ornamental or decorative bows attached to the railing. He expressed the opinion that the Code compelled compliance with both horizontal and vertical requirements despite his admission that it is permissible to run a wire over the top of a building, provided it is not less than eight feet above the roof or an attachment thereto. It is obvious that in such circumstances the required horizontal clearance of three feet could not be met. In practical effect, Mr. Stewart's interpretation would mean that if a power company found it necessary to install a high tension wire three feet from the side of a skyscraper, it would be obliged to run the wire eight feet above the top of the building, notwithstanding that the Code fixes the minimum height as 20 feet above ground level. The theory advanced by Mr. Stewart was rejected by plaintiff's other expert, Solomon Fishman, as is demonstrated by his answers to interrogation by the court:
'The Court: If it is 8 feet above the building, it can go right over the top of the building, isn't that right?
'The Witness: Yes, sir.
'The Court: And it would comply with the requirements.
'The Witness: Yes, sir.
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