Rosebrock v. Gen. Elec. Co.

• Decision Date: 13 July 1923
• Citation: 236 N.Y. 227,140 N.E. 571
• Parties: ROSEBROCK v. GENERAL ELECTRIC CO. et al.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 227

140 N.E. 571

ROSEBROCK

v.GENERAL ELECTRIC CO. et al.

Court of Appeals of New York.

July 13, 1923.

Action by Lucy Rosebrock, as administratrix of the estate of Edwin D. Rosebrock, deceased, against the General Electric Company and Tonawanda Power Company. A judgment in favor of the plaintiff against the General Electric Company and in favor of the defendant Tonawanda Power Company, upon a dismissal of the complaint as to it by the court at the Trial Term was unanimously affirmed by the Appellate Division (204 App. Div. 854,197 N. Y. Supp. 119), and plaintiff appeals by permission from so much of the judgment as dismissed the action against the Tonawanda Power Company, and the General Electric Company appeals by permission from so much of the judgment as allowed recovery against it.

Affirmed.

Hiscock, C. J., and McLaughlin, J., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Adelbert Moot, of Buffalo, Richmond D. Moot, of Schenectady, and Welles V. Moot, of Buffalo, for appellant.

Hamilton Ward, William J. Flynn, Philip A. Laing, and Harold J. Tillou, all of New York City, for plaintiff, appellant and respondent.

Thomas R. Wheeler, of Buffalo, for respondent Tonawanda Power Co.

CRANE, J.

The three parties interested in the occurrences involved in this lawsuit are the Niagara Falls Power Company, the Tonawanda Power Company, and the General Electric Company. Only the last two are parties to the litigation.

The Niagara Falls Power Company generates electricity at Niagara Falls and sells it to Buffalo and Tonawanda. The electricity is carried over cables, and in Tonawanda there is a station maintained by the Niagara Falls Power Company through which all the wires pass. Alongside of this station is the building and plant of the Tonawanda Power Company. On the night of October 31, 1920, an explosion occurred in the power station of the Niagara Falls Company which blew out the place, killing 13 men. Edwin D. Rosebrock, the intestate, was one of these men.

This action was brought, not against the Niagara Falls Power Company, but against the General Electric Company and the Tonawanda Power Company, and resulted in a verdict for the plaintiff against the General Electric Company, the judgment on which has been affirmed, one of the justices dissenting.

The plaintiff claims that the negligence of the General Electric Company consisted in shipping to the Niagara Falls Power Company current transformers which contained concealed internal packing blocks, without giving notice to the buyer of the presence of the blocks or notice of the danger that would arise from using the transformers with the blocks in them. The alleged negligence of the Tonawanda Power Company consisted in turning on the full flow of power without testing the lines.

The judgment in this case is against the General Electric Company alone. As to the Tonawanda Power Company, the complaint was dismissed. There seems to be no serious contention by the plaintiff over this dismissal, and this portion of the case can be affirmed without further discussion.

I am also of the opinion that there is evidence sufficient to sustain the verdict against the General Electric Company and that the judgment in this particular should also be affirmed.

The facts more in detail are as follows:

The cables from the Niagara Falls Power Company come into the power station where two of them are connected up with transformers to gauge or measure the supply taken by the Tonawanda Power Company. These cables, as stated above, pass out of the power station on to Buffalo, but at this point Tonawanda taps the electricity for its supply. The wires run from the power company station into the adjoining building of the Tonawanda Power Company. The current is so strong as it comes over the cables from Niagara that it cannot be metered-it must be reduced in force. For this purpose the transformers are used. By means of these instruments a secondary current is created which is capable of being metered. The ratio of the reduction in force is known and thus the supply of the heavy current going into Tonawanda is measured by the meter on the lesser current. The transformer is the instrument which the plaintiff claims was defective as delivered and is the basis for her claim of negligence. The transformer was exhibited and explained in court on the argument. Sufficient to say that it consists of primary coils between which, but disconnected from them, are other or secondary coils. The latter become charged by the electric current passing through the primary coils. In this way is produced in the smaller coils the secondary current. These coils are placed in a metal can shaped like an ash can and suspended from the top with four iron braces extending down from the top to which the coils are fastened to make them secure. The coils through which this current passes do not touch the bottom of the can, being about three to four inches above it. In order to insulate the heavy voltage which passes through this instrument, the can is filled with insulating oil. It is conceded that all parts of the instrument which are of metal, with one exception, where specially dried wood is used, must be very dry. The least moisture ruins the insulation properties of the oil. In case the insulation breaks down there is apt to be a short circuit. A short circuit occurrs where the electric current instead of flowing through the wires, as planned, jumps to some other object and thus returns to the source of supply. This also is called a leak. The danger consists, of course, in charging other properties with electricity or in jumping where there is a break causing a spark. It is said in this case that these transformers set up by the General Electric Company were so constructed as to short circuit. Part of the instrument, as sent, had to be removed before using.

The Tonawanda Power Company desired to increase its supply of electricity. The transformers which had been in use were too small to measure the increased voltage. Therefore, two new and larger transformers were purchased from the General Electric Company. They were shipped and installed in the power house at Tonawanda, and on the night of the explosion at about midnight the wires were connected ready for the current to be turned on. When at about 2 o'clock in the morning the current was turned on, the place blew up.

At the bottom of the transformers or the containers holding the transformers there were blocks of wood two or three inches thick filling the bottom of the can into which were set or fitted the bottom of the coils. These coils were connected at the bottom by a metal band or plate through which the current passed from one to the other, that is, the current passed in on one wire through the transformer and out over the other wire. These blocks were to sustain and keep secure while in transit the coils. It is apparently conceded that it would be unsafe to use the transformers while the blocks of wood were in the containers. The General Electric Company had made transformers for many years without using blocks of wood as here described. In fact, the Niagara Falls Power Company had bought its other transformers from the General Electric Company and had used them as shipped. The General Electric Company considered it necessary to inform purchasers of the danger of using the transformers without removing the blocks and of the necessity of taking them out before turning on the current. This notice was usually given in four different ways:

First, by a book of instructions which was sent to the purchaser, attached, as I understand it, to the instrument itself when shipped. The book is Exhibit 102 in this case and is entitled ‘Instruction Book 86019E.’

Second, by a tag which is not claimed by the defendant to have been on this shipment. Third, by a customary caution notice pasted on the outside of the metal container which reads:

‘Caution. Remove the wooden blocks inside the transformers before connecting it to the circuit.’

There is conflicting evidence as to this notice. The witnesses for the plaintiff who received the containers in the process of shipping and delivery claim that there was no such cautionary notice on the can.

Fourth, by the memorandum of shipment received in this instance by the Niagara Falls Power Company from the General Electric Company which contained the following caution printed at the bottom thereof:

‘Installation and adjustment instructions are attached to apparatus when shipment is made and should be carefully consulted before the apparatus is put into operation.’

On the top of each transformer were three brass labels. One read:

‘Current transformer No. 980416, spec. 140969, type S; form K-11; cycles 25 to 125; amp. 100-200; ratio 20-40 to one; 45,000 volt circuit. Important. Do not touch primary coils. Secondary leads must not be open circuited while transformer is in circuit. Meter terminals must not be handled unless secondary leads are grounded. General Electric Co., Schenectady, N. Y., U. S. A.’

The second tag gives the diagram on the connections, and the third tag says:

‘These transformers must be filled with oil before the transformer is connected in circuit.’

According to the testimony for the plaintiff, when these transformers were received by the Niagara Falls Power Company there was only the metal pieces referred to on the containers and the cautionary notice on the bill of shipment which was filed away by clerks and unseen by the men installing the apparatus. The tag and the paster were not on the transformers. The Niagara Falls Power Company treated these transformers when received in the same way that it had the two others purchased years before. It filled them with oil and gave them the ratio test. It did not remove the wooden blocks. It did not know they were in the containers.

The whole case turns upon the knowledge which the Niagara Falls Power Company had of...