N.Y. & N. J. Tel. Co. v. Bennett

• Decision Date: 06 March 1899
• Parties: NEW YORK & N. J. TEL. CO. et al. v. BENNETT.
• Court: New Jersey Supreme Court

42 A. 759

62 N.J.L. 742

NEW YORK & N. J. TEL. CO. et al.

v. BENNETT.

Court of Errors and Appeals of New Jersey.

March 6, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by Gordon Bennett against the New York & New Jersey Telephone Company and the Atlantic Highlands, Red Bank & Long Branch Electric Railway Company. From a judgment in favor of plaintiff, defendants bring error. Affirmed.

Flavel McGee, for plaintiff in error New York & N. J. Tel. Co.

Charles L. Corbin, for

plaintiff in error Atlantic Highlands, R. B. & L. B. Electric Ry. Co.

Edmund Wilson, for defendant in error.

GARRISON, J. The plaintiff, a countryman, who had driven into the town of Red Bank, stopped his horse near a drinking fountain that stood at the intersection of Front and Broad streets; and in order to remove some wire that lay in the street, between his horse and the fountain, picked it up, and received through it a powerful electric current, that inflicted permanent injuries, for which he brought suit against the New York & New Jersey Telephone Company, whose wire it was, and against the Atlantic Highlands, Red Bank & Long Branch Electric Railway Company, whose current, it was contended, did the harm.

The defendants were each maintaining wires in a public highway, in the exercise of franchise, not of an easement Hence each was bound to take reasonable care not to injure other users of the streets. Electric Co. v. Nugent, 58 N. J. Law, 658, 34 Atl. 1069; Railway Co. v. Bennett, 60 N. J. Law, 219, 37 Atl. 730.

One factor in the measure of reasonable care is the probable result of negligence. In the use of a powerful electric current in the public streets, reasonable care is great care.

If it was the duty of the telephone company to use reasonable care to prevent its wires, which were comparatively harmless, from coming in contact with naked wires that carried a powerful electric current, and if it was the duty of the trolley company using such powerful current to protect its naked wires from such contact by the use of a degree of care reasonably proportionate to the probable results, neither of these defendants has any just ground to complain of the charge of the trial court.

For by its charge the court did not permit the jury to hold either of the defendants to so strict an account in its use of the public streets. On the contrary, in respect to each its liability was limited to a single act of alleged negligence, upon which there was proof pro and con. Against the trolley company the plaintiff was permitted to recover only in case he established that its failure to use guard wires was negligence by which he was injured; and, in regard to the telephone company, the right to a recovery was confined to the single question of the reasonable diligence of its employés in discovering the fallen wire, and in preventing the probable results. As propositions of law, neither defendant can complain of the submission of these issues to the jury, unless there was in the case no testimony competent to the establishment of the affirmative propositions of fact involved. That there was with respect to the use of the guard wires such testimony appears from the summing up of the trial Justice, which accurately shows the state of the evidence upon this point: "Experts in electricity and electric railways have been called on both sides. On the part of the plaintiff it is claimed by this...