Opinion
March, 1914.
Beardsley, Hemmens Taylor (Thomas H. Beardsley, of counsel), for appellant.
Strouse Strauss (I.T. Flatto, of counsel), for respondent.
The facts in this case are peculiar and, as we view them, fail to establish negligence on the part of the defendant. The defendant maintained an electric lighting post at Forty-third street and Second avenue, through which post passed highly charged electric cables. The plaintiff is a boy four and one-half years old, and on the day of the accident was on the street with his mother. The boy was about a half block ahead of his mother. The boy picked up a nail about six inches long and discovering a hole three-eighths of an inch in diameter in the post inserted the nail in the hole, and caused the nail to come in contact with one of the charged cables therein, and the boy was instantly burned on the hand and wrist.
The evidence shows that the hole was necessarily placed at the lower end of the post as an outlet for accumulating gases. There was conflicting evidence as to whether the insulation upon the cables within the post was defective, and, in view of the verdict of the jury for the plaintiff, we must assume that the plaintiff's version upon this aspect of the case is correct.
It does not seem to us that the defendant, in the exercise of reasonable care and prudence, could have guarded against this accident. The hole in the post was very small and, ordinarily, it would have been impossible for any pedestrian to have come in contact with the charged cable. The accident, therefore, was not caused by the negligence of the defendant. It was due entirely to the fact that the infant plaintiff, finding a long nail and observing the small hole in the post, inserted the nail in the hole.
The accident not having been due to the fault or the neglect of the defendant, it follows that the recovery in favor of the plaintiff cannot be sustained.
GUY and DELANY, JJ., concur.
Judgment reversed with costs, and complaint dismissed with costs.