Suburban Elec. Co. v. Nugent

• Decision Date: 16 June 1896
• Parties: SUBURBAN ELECTRIC CO. v. NUGENT.
• Court: New Jersey Supreme Court

34 A. 1069

58 N.J.L. 658

SUBURBAN ELECTRIC CO.

v. NUGENT.

Court of Errors and Appeals of New Jersey.

June 16, 1896.

(Syllabus by the Court.)

Error to circuit court, Union county; before Justice Van Syckel.

Action by Edward Nugent, administrator of Christian Otto, deceased, against the Suburban Electric Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Foster M. Voorhees and Frank Bergen, for plaintiff in error.

Richard V. Lindabury, for defendant in error.

GUMMERE, J. Christian Otto, the intestate of the defendant in error, was a member of the police force of the city of Elizabeth, and, at the time of his death, was engaged in patrolling Washington avenue and other streets in that city. His dead body was found lying upon the corner of Washington avenue and Pearl street, about three feet from the base of one of the electric light poles of the plaintiff in error, which was standing there. This suit was thereupon brought by the defendant in error against the Electric Light Company to recover from it the pecuniary loss sustained by the widow and children of the intestate by reason of his death; the plaintiff's claim being that decedent's death was caused by an electric shock, received from an exposed wire upon the said electric light pole, and due to the improper construction and maintenance of the defendant company's electric light plant at that point.

On the trial, at the close of the plaintiff's case, there was a motion to nonsuit, which was refused by the trial court, and, upon this refusal, error is assigned. The grounds upon which, it is claimed, the motion to nonsuit should have prevailed, are: First, that the evidence failed to show anything more than that the defendant was possibly responsible for the death of Otto; and, second, that, if it be considered that the evidence warrants the conclusion that his death was attributable to the defendant, the facts also demonstrate that he contributed by his own negligence to the accident which caused his death. It must be conceded that the plaintiff below was bound to show something more than that the defendant was possibly responsible for the decedent's death, in order to entitle him to a verdict. It was incumbent upon him, in the absence of direct evidence of that fact, to show not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the death was caused by the wrongful act of the defendant, and would exclude the idea that it was due to a cause with which ...