Opinion
December 30, 1909.
George R. Salisbury and Walter H. Cogan, for the appellant.
Thomas J. Keenan and J. Ward Russell, for the respondent.
The complaint was framed with allegations appropriate to constitute a cause of action for either negligence, nuisance or trespass. We need not consider whether the facts proven were sufficient to justify the submission of the case to the jury under the allegations respecting nuisance or trespass, for the reason that enough was shown to require the submission of the question of the defendant's negligence to the jury. It appeared that the defendant was delivering electrical energy over the wire in question to the Half Moon Light, Heat and Power Company at its power station in Mechanicville, so that company in turn could supply its customers with electricity for light, heat and power purposes. The place where the wire broke and the accident happened was at a point on the line before the electrical energy had been delivered by the defendant to the Half Moon Light, Heat and Power Company. The proof was that that company did not own the wire or the poles on which it was strung. The electrician who repaired the broken wire testified that it ran to the Half Moon Light, Heat and Power Company at one end and at the other to a building on the Hudson river, south of Mechanicville; that the sign on the building at that time was "Hudson River Electric Company;" that the building was a power house and the only business done there was furnishing electricity. This proof tended to show that the defendant had some connection with the wire even if it did not own or control it. It is clear that it was making use of it in transmitting a powerful and dangerous current of electricity over it and even if it did not in fact own it, still it was not free from fault and it might properly be held liable for injuries arising by sending such a current through a defective, improperly insulated or broken wire and that its negligence consisted in making use of such a wire for that purpose or in not knowing, by reason of its failure to properly inspect, that it was in an improper and unsafe condition for such transmission.
In a case like this the doctrine of res ipsa loquitur applies and after the plaintiff had furnished proof showing the defective and broken condition of the wire and that the defendant was making use of it in its business and had supplied the electrical energy which caused the plaintiff's injuries and showing the circumstances under which the accident happened, the burden rested upon the defendant to rebut the presumption of negligence arising from the happening of the accident itself. ( O'Leary v. Glens Falls Gas Electric Light Co., 107 App. Div. 505; Smith v. Brooklyn Heights R.R. Co., 82 id. 532; Wolpers v. N.Y. Queens El. Light Co., 91 id. 424.) Although the cases cited related to wires erected in the street, I see no reason why they should not apply to a wire erected as near the street as was this one, and which was as liable to fall in the street if broken, as it was to fall outside of it.
For these reasons, the court should not have said as a matter of law that there was no liability resting upon the defendant, and should have submitted the question of defendant's negligence to the jury.
The plaintiff being a child of the age of eight years was presumed to be non sui juris, and the question of her contributory negligence was also for the jury. ( McGovern v. N.Y.C. H.R.R.R. Co., 67 N.Y. 417; Zwack v. N.Y., L.E. W.R.R. Co., 160 id. 362; Gerber v. Boorstein, 113 App. Div. 808. )
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except SEWELL, J., not voting.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.