McGinnis v. Del., L. & W. R. Co.

• Decision Date: 20 November 1922
• Docket Number: No. 83.,83.
• Citation: 119 A. 163
• Parties: McGINNIS v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

119 A. 163

McGINNIS

v. DELAWARE, L. & W. R. CO.

No. 83.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1922.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Mary McGinnis, administratrix, etc., against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Frederic B. Scott, of New York City, for appellant.

Frank G. Turner, of Jersey City, for respondent.

TRENCHARD, J. This is an action brought to recover damages under the Death Act (2 Comp. St. 1910, p. 1904) for the death of James J. McGinnis, who was electrocuted when a cable of the pile driver upon which he was working in Duffield avenue, Jersey City, came in contact with an overhead wire of the Delaware, Lackawanna & Western Railroad Company, carrying 6,600 volts of electricity.

The jury at the Essex circuit found a verdict for the plaintiff, and the defendant appeals from the consequent judgment.

We are of the opinion that the judgment should not be disturbed.

A consideration of the reasons urged in support of the motion for a direction of a verdict for the defendant will, in effect, dispose of every ground of appeal.

The defendant maintains that its motion should have been granted because "there was no proof that the wire that caused death was owned, controlled, and used by the defendant." But that contention is not well founded in fact. Prom the testimony of O'Rourke at the trial, the photograph and map in evidence, and the admission of the defendant, the jury was justified in finding, if they saw fit, that the wire in question was owned, controlled, and used by the defendant.

It is contended that the motion should have been granted because "there was no negligence whatsoever shown on the part of the defendant." But that is not so.

The general rule is that it is the duty of a corporation that maintains and controls wires charged with a deadly current of electricity in a place where there is likelihood of human contact therewith to use reasonable care to maintain proper insulation of such current, and this involves reasonable care in inspection for the discovery of possible impairment or defects. Barnett v. Atlantic City Electric Co., 87 N. J. Law, 29, 93 Atl. 108; Anderson v. Jersey City Electric Light Co., 63 N. J. Law, 387, 43 Atl. 654.

In the instant case the evidence tended to show that the defendant strung and maintained the wire, carrying a deadly current of electricity, across the public highway, and that such wire caused decedent's death. It also tended to show a want of reasonable care in the insulation of that wire.

It is also to be noted that no legislative authority for the defendant to maintain this wire is disclosed by the record. Of course, if this wire was a public nuisance, no degree of care would relieve defendant from liability to respond for damages arising from it. McAndrews v. Collerd, 42 N. J. Law, 189, 36 Am. Rep. 508. But that question we do not deem it essential to consider.

The defendant further contends that it is not liable because "there was no proof that the defendant was bound to notice that an accident of the kind and character that happened was apt to happen." But that contention also is ill founded.

The underlying principle is 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. Van Winkle v. American Steam Boiler Co., 52 N. J. Law, 247, 19 Atl. 472; Wilson v. Brauer (N. J.) 117 Atl. 699. The test of the defendant's liability to a particular person is whether injury to him ought reasonably to have been anticipated. Guinn v. Delaware & Atlantic Tel. Co., 72 N. J. Law, 276, 62 Atl. 412, 3 L. R. A. (N. S.) 988, 111 Am. St. Rep. 668.

The defendant says that, because the dangerous wire was strung 18 or 20 feet above the surface of the street, it ought not reasonably have anticipated that the decedent would be injured. But that is a question about which reasonable men might well differ. There is said to...