Opinion
July Term, 1901.
Charles E. Spencer, for the appellant.
John H. McCrahon, for the respondent.
The plaintiff claims to have been injured by coming in contact with a suspended wire charged with electricity belonging to the defendant and forming a part of its street railway system in the city of Syracuse.
The story of the plaintiff is that on the 17th day of June, 1898, while he was riding his bicycle along North Salina street in that city and while near the school building known as the Sacred Heart School, a wire fell "striking me in the right eye and on the left wrist, throwing me to the pavement and burning my eye and on the left wrist. * * * I received a shock throwing me off my wheel." There was a piece of strain wire connecting with the trolley wire and reaching to an iron post in front of the school building. Plaintiff, in describing it, said: "It laid on the pavement and the other end was dangling up in front of me, hanging from the trolley wire." Continuing his narration, he testified that he went to his home, riding his wheel, but alighting and resting on the way; that his heart pained him from the first; that after about two weeks Dr. Moore was called and has treated him since.
The only witness who tends to support his claim as to the cause of the accident is a barber named Renaud whose shop was on this street near where the plaintiff claims the accident occurred. Renaud testified he saw a man fall violently at this time on the place indicated by the plaintiff as that of the injury. He noticed one piece of wire "hanging down * * * about in the middle of the first track, north. The other piece laid over across the gutter. * * * All I could see when it came down over the gutter, it might have been three and one-half or four feet; this other piece came directly down from the trolley wire. It looked to me as though it hung there. * * * I could reach it easy enough; * * * it did not come down to the ground."
The proofs of the defendant seriously impugn the truthfulness of the plaintiff's story. Two witnesses who are wire repairers in the employ of the defendant, testified to repairing a wire at this point on this day, and they assert positively that it was not a live wire. Balway, who reached the place ahead of his fellow-workmen, said that the piece had dropped down and been wound around a stone hitching post; that he unwound it and straightened it out with his bare hands, and Breed the other repairer, also testified to the situation of the wire, and that he handled it and felt no electricity in it.
This street is covered with asphalt pavement, and between the gutters it is forty feet in width, with an unimpeded space of thirteen feet between each outer rail of the defendant's track and the curb. The plaintiff testified, with much positiveness, that the asphalt was "absolutely dry" and his own statement is that it was a "nice day," and this is corroborated by the records of the weather bureau of Syracuse. Several electrical experts testified that asphalt when dry is a non-conductor of electricity, and that the concrete which forms the base of this pavement is also a non-conductor in that state, as is the rubber which was the tiring of the wheels of plaintiff's bicycle. While this may in a measure be expert testimony, yet the witnesses testified to a scientific fact, and their testimony is entirely undisputed. It is proved that this trolley wire carried not to exceed 550 volts of electricity. One of the electrical experts testified to experiments in testing the effect of electricity upon asphalt where he subjected a piece of one-fourth of one inch in thickness to a current of 20,000 voltage without any conduction; it was wholly impervious to the current. We have, therefore, the undisputed evidence that the plaintiff was riding on a dry asphalt pavement, concededly a non-conductor of electricity, and upon a wheel with tires of rubber, also a non-transmitter of the electrical current; and, if this is the true condition, contact with the exposed wire charged with electricity would not be fraught with any danger from that agency. There must be an uninterrupted circuit of the current to enable the electricity to flow. If one pole is a non-conductor the circuit is checked and no shock will follow, however heavily charged and bare may be the wire.
Again, considerable evidence was given on behalf of the defendant tending to show it was a physical impossibility for the plaintiff to receive a shock from this strain wire. That wire was not intended to be charged with electricity. Two line repairers, Breed and Balway, vouched for its insulation. Clarke, the chief engineer of the defendant, who was called as a witness for the plaintiff, testified on cross-examination to the connection of the strain wire with the trolley line, and the method of construction, as follows: "Beginning at the trolley wire, there is from three to four feet of steel wire, then follows a composition placed there as an insulator. That composition is a patented article and I can't describe what it is made of; it is a secret process, but made by several manufacturers; it is usually round in shape with an eyebolt protruding from either side; that is a non-conductor of electricity.
"From this insulator, which is about three feet to four feet from the trolley wire, there is an iron wire running towards the pole, and separated from the pole cap by an insulator which is fastened to the pole; that insulator is an ordinary spool you may say; spool I think it is in this case. The spool is of composition material. It is a regular spool. That is what it is; just the same shape as a spool thread is on. An iron ring goes through the pole and a bolt goes through the iron ring, through the spool; the bolt is iron; the span wire sets in the groove of the spool, around the outside of the spool, so that the span wire does not come in contact with either the pole or this bolt that goes through the spool."
Connette, the manager of the defendant, and an experienced expert in electricity in its use on trolley lines, testified there were two insulators between this strain wire connection and the pole top. One is a ball insulator, a patented contrivance which is a composition of various ingredients, and the other called a spool insulator, made of lignum vitæ; that these insulators are in general use and as satisfactory as any known in the business. No impeachment was given to this proof that the method of construction rendered it impossible for the accident to have happened by contact with this strain wire, as testified to by the plaintiff.
There are other circumstances which tend to weaken the plaintiff's story. He never made any complaint to the defendant or presented any claim to it, nor did he employ an attorney or bring his action until about fourteen months had elapsed from the time he asserts the injuries were inflicted upon him. Two or three personal friends who were with him on various occasions testified he never intimated that he had received or was suffering from any injuries, and he never mentioned the accident which is now the basis of his large claim. He testified he was burned on the wrist and eye, yet no one testified to any scars or evidence of burns, and, at the time of the examinations by the physicians, even by Dr. Moore, there was no outward trace of contact with an electrical wire. A shock which would cause the permanent results with which he insists he is afflicted and of sufficient force to knock him violently from his wheel, would be apt to produce some abrasion or scorching. There is a radical disagreement among the physicians as to the extent of his heart difficulty, not arising from the varying theories, but from physical examinations of the plaintiff. Doctors Moore and McMorrow testified that his heart was out of position; that it was enlarged; that it revealed a noticeable mitral murmur; that there was a physical derangement existing which would be irrecoverable. Doctors Totman and McMaster, on behalf of the defendant, said there was no heart murmur, and no displacement, but an irregular heart.
The accident was an unusual one. That a live wire should fall at this particular juncture and hit the plaintiff, knocking him from his wheel, while a possible incident, was certainly out of the ordinary misadventures.
As to the legal questions, there are none calling for extensive discussion. There was no proof of any specific negligence on the part of the defendant; nothing showing that the wire was in a condition to be dangerous if it came in contact with a person; and nothing showing a defective construction or careless use of the wire. There is, however, some evidence from which it is urged there was a failure to give adequate inspection.
The plaintiff invokes the doctrine of res ipsa loquitur, and that probably will suffice if his story be true. ( Jones v. Union Ry. Co., 18 App. Div. 267; Volkmar v. Manhattan Ry. Co., 134 N.Y. 418; O'Flaherty v. Nassau Electric Railroad Co., 34 App. Div. 74; Griffen v. Manice, 166 N.Y. 188.)
A trolley wire, charged with electricity, hanging down in a public street would be a condition supporting the presumption that there was some disarrangement in the appliances, however perfect may have been their mechanical construction, and would raise the inference of negligence.
The plaintiff has recovered a large verdict. It depends in its main features almost entirely upon his testimony, and it is controverted by facts and circumstances which are not explained away or disputed, and they are too overwhelming, unless cleared up or impaired by contrary testimony, to permit a recovery in this case to stand.
As was said by Judge HAIGHT in Hudson v. R., W. O.R.R. Co., ( 145 N.Y. 408, 412): "But where the evidence which appears to be in conflict is nothing more than a mere scintilla, or where it is met by well-known and recognized scientific facts, about which there is no conflict, this court will still exercise jurisdiction to review and reverse if justice requires."
That excerpt is quoted approvingly in Laidlaw v. Sage ( 158 N.Y. 73, 97).
The judgment and order is reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed on question of fact and new trial ordered, with costs to appellant to abide event.