Paul v. Staten Island Edison Corp.

Decision Date18 July 1956
Citation2 A.D.2d 311,155 N.Y.S.2d 427
PartiesFrieda PAUL, as Administratrix of the Estate of Carl Paul, deceased, Plaintiff-Appellant, v. STATEN ISLAND EDISON CORPORATION and the New York Telephone Company, Defendants-Respondents-Appellants. STATEN ISLAND EDISON CORPORATION, Third-Party Plaintiff-Appellant, v. UTILITY LINES CONSTRUCTION CO., Inc., Third-Party Defendant-Respondent.
CourtNew York Supreme Court — Appellate Division

Benjamin H. Siff, New York City, for plaintiff-appellant.

William F. McNulty, New York City, for defendant-respondent-appellant and third-party plaintiff-appellant Staten Island Edison Corp.

William J. Hegarty, Ralph W. Brown and Jordan R. Bassett, New York City, for defendant-respondent-appellant New York Tel. Co.

Joseph Fennelly, William S. O'Connor and Gregory A. Lee, New York City, for third-party defendant-respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, MURPHY and KLEINFELD, JJ.

BELDOCK, Justice.

This is an action to recover damages for the alleged wrongful death of plaintiff's intestate and for his conscious pain and suffering. The intestate, a lineman employed by Utility Lines Construction Co., Inc., was a member of a crew engaged in the removal of electric wires from an old defective wooden pole and the transfer of these wires to a new pole. While thus engaged upon the old pole the intestate was electrocuted when, at a point 20 feet above the ground, the pole suddenly broke, causing him to be thrown against high tension electric wires. The poles were owned jointly by the defendants Staten Island Edison Corporation and New York Telephone Company.

Each of these defendants interposed a cross complaint against the other, and Edison impleaded Utility as a third-party defendant. At the end of the plaintiff's proof before the court and a jury, the complaint was dismissed on the ground that, as matter of law, plaintiff had failed to make out a prima facie case against either defendant Edison or defendant Telephone Company, and the cross complaints and third-party complaint were accordingly dismissed.

Plaintiff appeals insofar as her complaint was dismissed. Edison appeals insofar as its cross complaint against the Telephone Company and its third-party complaint against Utility were dismissed. The Telephone Company appeals insofar as its cross complaint against Edison was dismissed. In reaching his conclusion that plaintiff, as matter of law, failed to establish a prima facie case, the learned Trial Justice relied on Storm v. New York Tel. Co., 270 N.Y. 103, 200 N.E. 659. It is our opinion, however, that plaintiff did make out a prima facie case; that here serious questions of fact are presented; that such questions must be resolved by the jury and may not be decided by the court as matters of law; that such questions of fact were not presented in the Storm case, and that, upon analysis, the Storm case will be found to be readily distinguishable.

In a death action such as this, in which, at the end of plaintiff's proof, the complaint has been dismissed as matter of law, the facts must be read, and their sufficiency to establish a prima facie case, must be judged in the light of these four well established principles: (1) that the plaintiff is not held to as high a degree of proof as where an injured plaintiff can himself describe the occurrence; (2) that the evidence adduced at the trial is to be considered in the aspect most favorable to plaintiff, who is entitled to the benefit of every favorable inference which can reasonably be drawn from the evidence; (3) that the burden is on the defendant to establish the decedent's contributory negligence, and (4) that if any possible hypothesis based on the evidence forbids the imputation of fault to the deceased, as matter of law, the question is for the jury. Anderson v. Bee Line, 1 N.Y.2d 169, 172, 151 N.Y.S.2d 633, 634; Flynn v. Long Island R. R. Co., 289 N.Y. 283, 45 N.E.2d 445; Chamberlain v. Lehigh Val. R. R. Co., 238 N.Y. 233, 235, 144 N.E. 512; Decedent Estate Law, § 119.

Applying these principles here, the proof discloses the facts and inferences, stated below, and, again invoking such principles, these facts and inferences lead to the conclusion that plaintiff has established a prima facie case.

The old pole was owned and maintained by Edison and the Telephone Company pursuant to a written agreement made between them in 1923. The pole carried the wires of both. In the summer of 1948 they both decided to replace the old pole and to transfer their wires and equipment to a new pole. Except for the actual transfer of Edison's high tension electric wires and their appurtenances, all the work involved in this change appears to have been done by the Telephone Company. On January 4, 1949 it removed from the old pole its terminal box and three supporting bolts. These had been affixed at a point about 20 feet above the ground. On February 24, 1949 it erected the new pole alongside the old pole. It then cut off the old pole at its base or butt and securely lashed the old pole to the new pole. The lashings were at the butts and at a point 20 feet above the ground. The latter point was the precise location of the terminal box and bolts prior to their removal, as well as the precise point at which the old pole subsequently broke.

The old pole was 45 feet in its overall height, with 6 feet--the butt--anchored into the ground, and 39 feet extending above the ground. The new pole, after its installation, was 7 feet shorter than the old pole. The lashing at the base consisted of slings of five-eighths inch or three-quarters inch manila hemp rope and also wire. The lashing at the 20-foot elevation consisted of the rope slings.

With the new and the old pole thus prepared and made ready, Edison entered into a contract with Utility on July 7, 1949 which required Utility, on receipt of written notice from Edison, to remove Edison's wires and apparatus 'under the supervision' of Edison's general manager 'and to his satisfaction.' That Utility is an expert in the transfer of high tension electric wires, is undisputed.

Pursuant to said written contract, on August 26, 1949 Edison delivered to Utility two written work orders containing detailed specifications for the transfer of the wires and other apparatus from the old to the new pole. Both work orders included the statement 'pole defective.' This general indefinite statement was the only warning which the pole owners gave to Utility and its linemen.

On September 1 and 2, 1949, pursuant to Edison's said work orders, Utility's crew of men, consisting of the foreman Cronin, three linemen, Lee, Crockett and the intestate, and a helper undertook the work of transferring the wires. It will be noted that this work was commenced about eight months after the Telephone Company had removed its terminal box and bolts and some six months after it had installed the new pole, cut off the old pole at its butt, and securely lashed the poles together.

Despite the fait accompli which Utility's employees found (with respect to the cutting of the old pole at its butt and the lashing it to the new pole, thus apparently rendering the defective pole safe), nevertheless, out of an abundance of caution, they put another rope lashing at the 20-foot elevation and they observed the practices which they customarily follow before attempting to remove the wires from any defective pole. They made three routine tests: (1) they struck the pole at various places with a hammer; (2) they probed the base or butt with a bar, and (3) they probed at various places above the butt with a screwdriver; this test, however, being made mainly to determine whether the wood would hold the linemen's hooks or spurs.

Of course, if the old pole had been tapped or probed at the precise point of the boltholes (20 feet above ground) a rotted dangerous condition would have been revealed. But admittedly the men did not make any tap or probe at that very point for several reasons: (1) the established practice is to make only spot checks, which they did; (2) the rope lashings obscured the boltholes; (3) such lashings, at the base and at the 20-foot elevation, securely bound to the new pole the lower portion of the old pole--the portion where rot usually occurs and the only portion which usually renders the old pole defective and dangerous; (4) the effect of cutting off the old pole at the butt and securely lashing it to the new pole was to eliminate the usual defect and danger in a defective pole and to make the old pole as stable and as safe as though it had been securely anchored in the ground, and (5) during all the years of their combined experiences and in the countless numbers of defective poles upon which they had worked, they never found any defective pole to become so completely rotted at a point so distant from the lower portion or butt. As one witness said, with the old pole lashed as it was, 'it couldn't be pulled down with a truck'.

The tests made by Utility's employees indicated that the old pole, though defective, was strong enough to permit them to do their work in safety. Accordingly, the three linemen ascended the poles. Their first act was to install a guy line on the new pole and 'two bull lines.' The latter are temporary lines which are so placed in relation to the guy line as to exert a counter stabilizing force. Then they proceeded to detach the wires from the old pole and to attach them to the new pole. They first detached the six wires from the buck arm on the old pole--this buck arm carrying the wires which run at right angles into the intersecting street, and then attached such wires to the buck arm of the new pole. The removal of these wires removed all the pull or strain upon the old pole and created a slack in its guy line. As one witness said, the removal of such wires not only removed all the strain upon the old pole, but it also released all the tension and tautness in the old guy...

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