
    Nathan W. Horning, Respondent, v. Hudson River Telephone Company and Fulton County Gas and Electric Company, Appellants.
    Third Department,
    January 8, 1906.
    Negligence — injury by live wire — failure to protect 'electric light wire — failure properly to support telephone wire — proximate cause.
    The plaintiff, a fireman, while going to a fire found a telephone wire breast high across the path through which the fire engine must pass.' In attempting to remove it he was burned'and injured by electricity. It was shown that said wire, owned by the defendant telepone company, was not strung on poles, but attached by brackets to wooden buildings with spans of from 519 feet to 168 feet. The use of the wire had .been abandoned for some time. Because of a fire. in. one of the wooden buildings to which it was- attached the wire had fallen on an unprotected electric light wire operated by the codefendant, and carrying a current of 3,500 volts. Said electric .light wire was uninsulated, and not protected by guard wires. The- telephone wire was strung 8 feet above said electric light wire. There Was evidence that insulation or a guard wire over the light wire,, if kept in good condition, would have prevented the transmission of the current to the telephone wire.
    
      Held, that the negligence of both defendants was properly left to the jury and that a verdict for the plaintiff was warranted-by the evidence;
    That the question as to whether the defendants in the exercise of'reasonable prudence could have anticipated that said building might burn and bring the wires into contact was for the jury; - ' '
    That the, failure of the defendants properly to protect the wires was "the proximate cause of the injury, and not the burning'of the building which caused ■ the fall of the wire. - - -
    Appeal by the defendants, the Hudson River Telephone Company and another, from a judgment of the Supreme -Court in favor of the plaintiff, entered in the office of the clerk of the .county of Fulton on the 15th day of June., 1905¿'upo.n the verdict of a jury for $11,000, the amount having been reduced by consent from $14,000, and also from an order entered in said clerk’s office on the 10th day of.July, 1905, denying the defendants’ motion for a new-trial made .upon the minutes, with notice of an intention -to bring up for review upon such, appeal an order entered in said clerk’s - .office on the 15th day of J une, 1905, granting the- plaintiff an additional allowance of costs.
    , The defendant, gas and electric company is a duly organized corporation, exercising its' franchise to furnish light and power hy electricity to the city of Johnstown, and it was lawfully operating in the streets of such city. It had extended its wires through West Montgomery street, and such line seems to have been, in all respects well and thoroughly constructed and insulated from the ground at that locality. The defendant telephone company was also a corporation lawfully exercising its franchise to act aS such through the streets of such city. Some six or seven years after such light company had erected its said lines through said street, such telephone company carried its wires from the west mill of one Stewart, and which was on the West side of such street, across said street to- the east mill, so called, of said Stewart, on the easterly side of such street, and thence from such east mill to the Geisler mill, so called, and the only support for such wires were the wooden buildings to which they were, attached. ’
    On the night of July 6, 1903, the Geisler mill took tire and burned down. During the progress of the fire, the plaintiff, who was a member of the 'fire department of said city, on his way to such burning mill, passed through a lane on the premises of Stewart which was used in connection with such. east mill, and found the telephone wire that had extended from Stewart’s east mill to the Geisler mill lying across such lane and about breast high, and evidently an obstruction to any hose cart or fire engine that should attempt to. pass through there. He, with Stewart, who was with him at the time, took hold of such wire and attempted to break it, and remove it from that position, and after continuing such effort for a short time, he received a shock which resulted in a very serious burning and injury. For the injuries so sustained he brought this action against these defendant companies, claiming that it was caused by their negligence. Such claim of negligence was based upon the proposition that the current which injured the plaintiff had been diverted from the electric company’s wife 'by the telephone wire having fallen upon and come in contact with such wire and that such contact was caused by the negligent manner in which such wires were put up and maintained. The.jury rendered a verdict for the plaintiff and against both defendants, and from the judgment entered thereon and from an -order denying a motion for k new trial this appeal is taken. Further facts appear in the opinion.
    
      
      John A. Delehanty and James J. Farren, for the appellant telephone company.
    
      Fred Linus Carroll, for the appellant electric company.
    
      Andrew J. Nellis, for the respondent.
   Parker, P. J.:

By the evidence in this case this situation was presented to the jury: The light company had constructed its pioles and wires through West1 Montgomery street. It was lawfully authorized to use such street, and such construction was the usual and' standard one. The span at the place where the contact complained* of took place was. upon good substantial poles, well insulated from the street, and was 168 feet in length. The telephone company thereafter erected its line in that part of the city and stretched a wire some 8 feet above the light company’s wires, crossing Montgomery street and the Oayadutta creek adjacent thereto, and also over a bridge that crosses such creek. , This locality is in the extreme suburbs of the city. and where the buildings are some considerable distance apart. Such telephone wire, instead of being supported by poles, is attached to brackets which are fastened to the roofs of. the wooden buildings some 30 feet from the ground. The west end of such telephone wire was attached to a bracket fastened to the roof of Stewart’s, west mill, so called. It then extended across the creek and street at a height of 8 feet above the upper wires of the electric lines, and was fastened to a bracket on Stewart’s east mill, so called. It then proceeded in a northeasterly direction, across private- property and some 30 feet above the earth', to. the G-eisler mill, making a span o.f some 519 fee.t. From thence it extended a distance of 260 feet to the Leíer1 building, and thence to other buildings and poles connecting with the telephone company’s lines throughout the city. The span from the west mill to the east mill over the- light company’s wires was 2¿2 feet. It may be assumed that the brackets were well and securely fastened to the buildings and that the telephone wire was tightly stretched such distance of 30 feet above the earth. Ho poles or supports other than the buildings mentioned were used, and the spans so created by that method of sustaining the wire were unusually long.

When first put up this wire was used to furnish telephone service to the several mills in that locality, but for some year and a half before this accident such service had been withdrawn and the use of such wire abandoned, and it is apparent that for that period little attention had been paid to inspecting such wire.

The general construction of the light company’s line in Montgomery street was a standard one. The claim of the plaintiff, however, is that, under the conditions that were presented by the. construction and maintenance of the telephone wire in the manner above stated, and in view of the strength of the electric current which was taken through its upper wires for the purpose of lighting the streets, viz., 2,500 volts, an especial duty was put upon each company to provide other and better safeguards against a contact between their respective wires than were provided, and to prevent, by better insulation of their respective wires, a transmission of the electric current in the event that a contact did occur. Hpon this claim the trial court charged the jury as follows: “The electric light company says that its plant was standard construction throughout, and that for the ordinary purpose- of conveying electricity the plant was beyond criticism. And unless you find that there was an unusual and extraordinary situation at the bridge, you 'would find that the electric light company had in use a standard and up-to-date plant, and had taken the precaution usually taken where a telephone wire crosses an electric light wire.” And it alsb further charged substantially to this effect: So far as the lighting company is concerned there-is no serious question that this line at this bridge, if it had not beén for this crossing, or if the crossing had been made in the usual way, without connection with the buildings, was beyond serious criticism. But the question is- whether the electric light company, in the exercise of reasonable prudence, should have noticed the insulation on the respective wires; that the telephone wire was supported upon ordinary wooden buildings; that such buildings were liable to burn and the wires, therefore, to come in contact; that if contact did occur trouble would arise ; and would a prudent man, under such circumstances, have continued the business of carrying electricity through the streets without doing anything to render it any more safe, and could anything be done to render it more safe ?

Thus it is seen that the issue upon which the jury have passed is a narrow one. Telephone wires are constantly being taken over ' electric light wires, and under ordinary circumstances no precautions other than were taken here to prevent contact, viz., a distance " of eight feet apart, are .deemed necessary; but were the conditions in this case such that reasonable care and prudence required extra precautions '? Would guard wires have tended, to prevent contact, and should they have been added by the electric light company in-this case ? Could their respective wires have been so insulated at-the place of this, crossing as to have prevented a diversion of the current in case the telephone wire, for any cause, sagged or fell; and if so, was there such reason to apprehend a possible sag or fall that a prudent man using such a powerful and deadly current would have so insulated the wires? Such were substantially, the questions left to the jury, and whether they were warranted by the evidence in reaching, the conclusion which' they have reached is the first question for ús to examine. "

Both companies earnestly contend .that as to a better insulation . of the wires it is plainly shown that there is no insulation either used or made that would be adequate to prevent | the transmission of the current from the light wire, carrying the voltage that it did, to the telephone wire, if they came in contact; that, therefore, neither can be charged with negligence in not so insulating them.

' Undoubtedly all experts agreed that no such insulation was made or in general use; but, as I understand the evidence, one of the defendants’ experts testified that a rubber insulation five-thirty-seconds of an inch thick would be adequate to prevent such transmission if sufficient care and attention was. given to keep it in proper condition. ■ I do not find any evidence to the effect that such an insulated wire for a distance of 168 feet could not be procured, or that it could not with reasonable effort.be maintained in proper order.

As to the protection from contact by the use of a guard wire above and outside of those carrying the electric current,.on the light company’s poles, the defendants also urge that- the proof shows that such wires are nowhere Used for such protection, and that their use adds danger to the- situation rather .than- prevents a contact. After diligently studying the evidence on, this point, I do not eon-cur with their counsel that the evidence is conclusive to that effect. Undoubtedly the evidence of the defendants’ expert is, that such guard wires are not used for such a purpose, and all substantially agree that under the conditions which this case presents as to the conditions and supports of the telejfhone wire, they still thought that the electric company’s line at this point was well and properly built and up to standard, without their use. But some of such expert evidence agreed that such a guard, if “properly installed, inspected and maintained, * "* * would'act as a source of safety.” And the question is, whether in this particular case such a guard could not have been “properly installed, inspected and maintained” and thus have prevented the contact that worked this injury. I cannot find that it is established by the evidence" that it could not, or that its use was either unsafe or impracticable. On the contrary, it seems to me that for the distance of 168 feet, which was the length of the spain over which the telephone wire hung, such a guard could have been easily erected and maintained, and I am not prepared to.hold that the jury erred in arriving at that conclusion.

The jury have evidently concluded that other practicable provisions-against the two wires coming in contact and the diversion of the current from the one to the other, could have been taken by the defendants, and each of them ; and under this evidence I am not disposed to disturb the finding of the jury on such questions.

Of course the fact that such precautions could have been taken and would probably have prevented the injury, does not render either defendant liable for this injury unless it was negligence on its part not to hjive taken it. Each defendant vigorously urges that unless the Gfeislér mill had burned, the telephone wire would not have fallen, and the method of protecting against contact of the wires and transmission of the current would have been entirely sufficient ; and that it is beyond reason to require them to anticipate such burning, and to take unusual precautions in expectation thereof. In other words, they deny that there were any conditions that did or should have suggested a falling wire and extra precautions to prevent it. That, I think, was a question properly submitted to the jury. Of course the jury might properly charge the electric company with knowledge of the precise situation of the telephone wire as it was stretched and supported over and beyond its line. It was its plain duty to know that condition, to consider how it affected its own line,- and,' if there was anything indicating danger, which a reasonably prudent man would take notice of, then such company should have noticed it and protected against it, so far as fn the exercise of reasonable care and prudence it could have protected against it. - ■ '

The plaintiff calls attention to the fact that each o.f the supports of this telephone wire from and including its'west end to the Geisler. mill, and for some'distance east of' it, was a wooden building, either one' of which was much more liable to burn than a pole would be; that the first span from the easterly support of the span crossing the electric light wire, viz., Stewart’s east mill, was 519 feet long, and the further end of that span was the Geisler milk Ho support of any kind for that long distance was between those, two mills. So that,, if either of those two. buildings burned, it was to be expected that both ends of such span' would be loosened -from their support. And, therefore, if either one of the several buildings . burned, it was to be expected that the telephone line wonjd' be disturbed probably -the whole length of it and thus threaten to loosen the telephone wire and cánse it to sag .or fall. These and sundry other arguments were presented to the jury as showing that reason^". • able . prudence should have discovered that the result of a-.fire, ■although as far. away as. the. Geisler mill, was an event wliich, if it did happen, would be likely to bring about 'a contact between the two wires, and very clearly, as they argued, if either building at the east or west end of the telephone span crossing Montgomery street was burned, contact w-onld be sure' to follow. The question as to whether each defendant should not in reasonable prudence have so fay anticipated the burning of some one of such buildings as to . require it to protect against the clear result likely to follow therefrom, was;in my judgment one of fact for the jury.

We have, ,then[ the decision of the jury to the effect -that, under the circumstances thus presented to the two defeydantsjit was their duty to have taken other and further precautions against contact by their two wires, and that there-were precautions which in the exercise of reasonable inspection and diligence they could have taken, and that their neglect " to so take them was a negligent omission Which caused the contact now complained' of, Taking the wkole evidence in this case, I am of the opinion that we should not disturb either of such conclusions.

It is further urged upon us by the defendants that, even though they were negligent in not better guarding against the contact of their wires and the diversion of ¡the electric current from the one to the other, nevertheless such negligence was not the proximate cause of the plaintiff’s injury, and that, therefore, he cannot recover in this action.

It is plain that, if by its fall, the telephone wire had not come in contact with the electric wire and thereby diverted its current, this injury to the plaintiff would not have occurred. It was the transmission of such current into the telephone wire that ivas the direct cause of plaintiff’s injury; and if such transmission may be charged to the negligence of the defendants it is difficult to see why such negligence is not the direct cause of the injury. There is no intervening cause between such contact and the plaintiff’s injury, and if such contact is due to the defendants’ negligence then such negligence is the direct or proximate cause thereof. It. seems to me that the negligence .which the-verdict of the jury has imposed upon the defendants is a negligence to which the act of contact- and consequent transmission of the electric current was due. The precise and only negligence with which the defendants are charged is one that makes them responsible for that contact, and hence concede the negligence, and there is really no question of proximate cause in the case. .

It is true that if the mill had not burned and the telephone wire been thereby torn down there could have been no injury, but that is because there would then have been on contact of wires. In this aspect the burning of the mill is a concurrent cause of the injury, but it is the remote and not the proximate cause. The defendants’ omission to guard against the natural result of such remote cause is the negligent act complained of. It may be that the defendants did not -neglect any duty they owed to the plaintiff in n'ot anticipating and protecting against that remote cause. I concede that is a question not without doubt, but if the jury have, correctly resolved that doubt, and, as I said above, under all the features of this case it should be left to them to determine, I have no- doubt that the defendants’ omission to protect against contact of their wires was, the proximate .cause of this in jury, and I do not attempt to analyze the numerous eases on that subject and, compare them with the facts of this case. In Laidlaw v. Sage (158 N. Y. 99, 100) is quoted a definition from the American Law Review (Vol. 4, pp. 204, 205), which clearly illustrates and determjnes the question whether the burning of the mill, or the negligent omission to guard against contact ■ of the Afires, should be deemed the proximate cause of the plaintiff’s injury.

It is manifest that the question as to preventing contact of its wires and 'consequent transmission of the electric current was as: applicable to the telephone company as to the other one, and that, the jury had the same warrant to charge negligence in that respect against it, iff not. more, and, henee, I have not examined the evidénce as applying separately to each case. Upon the finding of the jury and the evidence in the case both are to be charged with a negligent omission in that respect.

I have examined the exceptions taken by the respective defendants upon the trial and do not find any that I think require a 'reversal of this judgment.

In my opinion the judgment and order must be affirmed, with costs.

Judgment and order unanimously affirmed, with costs; Kellogg, J., not sitting, ,  