
    Mary B. Courtney, as Administratrix, etc., of Dennis J. Courtney, Deceased, Respondent, v. Niagara Falls Hydraulic Power and Manufacturing Company, Appellant.
    Fourth Department,
    May 4, 1910.
    Master and servant — negligence — electric shock—assumption of risk credibility of witness — evidence — harmless error.
    I£ an employee has full knowledge of the dangers of his employment, momentary forgetfulness does not relieve him from the assumption of risk. .
    Evidence in an action against a master to recover for the death of the plaintiff’s intestate, who was killed by a heavy current of electricity which jumped from a wire to the crowbar which he was using in his work, examined, and held, to sustain a judgment for the plaintiff.
    The credibility of the defendant’s superintendent, who was required to warn men to keep away from the wires, and who testified that he informed the deceased of the risk and that the current would jump, is for the jury. 1 ,
    .Where evidence competent when admitted later becomes unimportant because the charge eliminates as a ground of negligence the matter to which it relates, the error will not be considered on appeal.
    McLennan, P. J., dissented.
    Appeal by the defendant, The Niagara Falls Hydraulic Power and Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara 'on the 4th day of February, 1909, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 15th day of January, 1909, denying the defendant’s motion for a-new trial made upon the minutes.
    
      Ralph S. Kent, for the appellant.
    
      Eugene If. Ashley and Augustus Thibaudeau, for the respondent.
   Kruse, J.:

Dennis J. Courtney, the plaintiff’s intestate (her husband), was killed by electricity while at work for the defendant. He had been engaged in assisting to dislodge a rock lying at or near the edge of the race through which the water is discharged from the defendant’s power plant into the Niagara river, using an iron bar for that purpose. He stepped back or away from ivliere he had been thus engaged, with the bar uplifted in his hands. It came in contact with or so near a cable heavily charged with electricity that a short circuit was formed, a. current passing or jumping from the cable to the bar, through Courtney’s body and to the ground, causing his death instantly.

The defendant’s power house is located on the bank of the Niagara river below the upper steel arch bridge at Niagara Falls. A new generator was being installed in a new section of the power house, then about completed. For the purpose of testing the generator, wires were temporarily ruy from the generator out through the side of the building, over a raceway and a sixty-foot space to the ridge board of the carpenter house, so called, and thence forty feet further to a rheostat in the river. The wires were charged with 12,000 volts of electric energy, the current being turned on and off as occasion required in testing.

The accident occurred April 28,1908,'at'about four o’clock in the afternoon. On the morning of that day at about half-past ten, one of the defendant’s workmen was instructed by the superintendent to tell Courtney that .Mr. Sclioellkopf, the defendant’s president, desired him (Courtney) to clear out the raceway; that he wanted it done right away ; and after Courtney was so informed he went to work as he was told. His working place was almost im mediately - under the charged wires. The wires sagged at this point so that they were but eiglit feet from the ground.

One of the grounds upon which the plaintiff sought to predicate negligence was the use of a water rheostat, that is, instead of grounding the rheostat, place it in the water, as was done in this case; but the trial judge ehminated that as. a ground of negligence in his charge, stating that as the evidence finally stood it was proper to conduct the wires to the rheostat and have them end in the water.

I have no difficulty in reaching the conclusion that the defendant exposed the deceased to unnecessary and. hidden dangers in carrying on the work given him to do, and that he himself' was free fiom contributory negligence.

The only serious question in my mind is that of assumed risk. The learned trial judge held, in substance, that if the deceased had full knowledge of the. dangers, momentary forgetfulness would not relieve him from the rule of assumption of risk. I think he was right. If a person either impliedly or expressly assumes a risk, I think he is not entitled to recover for personal injuries resulting to him therefrom because he may have forgotten about it. The rule of assumed risk in such case, I think, has full effect, notwithstanding such momentary forgetfulness, although the circumstances may be such as . not to make him gudty of contributory negligence. Tested by this rule, I think the defendant established that the deceased assumed the risk, if the testimony of the defendant’s electrical superintendent is to be taken as absolutely true. He, in effect, testified that he told the deceased of the danger of this heavily-charged electric wire, and that if he came within twenty inches of the wires it would probably kill him ; but the credibility of his testimony was for the jury. He admitted that it was his duty to warn men who were about the wires and keep them away.

While I think the evidence fairly shows that the deceased had a general knowledge of the dangers of electricity, I think it was a question whether he fully knew and appreciated the risk of the dangerous situation in which he was placed in carrying on his work. He had been in the employ of the' defendant for several years as foreman of concrete and masonry construction; but whether he knew that the wires were so heavily charged, and that the electric current would jump — or even that the current was on at the time of the accident, and all the other hidden dangers to which he was subjected — was, I think, a question of fact. The circumstances show, as it seems to me, that the bar did not come in actual contact with the wire. In the first place, if it had the bar itself would probably have shown more evidence of burning than it did ; and in the next place, the evidence is practically undisputed that a current of this high tension would jump from the wire to the bar, going to the ground. While I do not think it would jump so far as the superintendent claims he told the deceased it would jump (he himself says that it would not, and he claims he only told that to the deceased as a matter of caution), yet practically all the witnesses sworn upon the subject say that it would jump from an inch to two inches or more. If so, it is not unreasonable to conclude that the current would jump to the bar ás soon as it came near enough, Even if the deceased was moving the bar toward the wires itlie current would probably move more rapidly than the bar. ■

As regards the claim that errors were committed in the admission of evidence, much of. that relates to the water rheostat. When admitted the evidence was competent, although it became unimportant later, as it ultimately appeared that it‘was proper to make the test with, the water rheostat, and as the trial court held.

I think the case was properly submitted to the jury, that the evidence sustains the verdi,ct, and that' the other questions urged upon our attention are insufficient to warrant a reversal of the judgment.

• The judgment and order should be affirmed, with costs. .

All concurred, except McLennan, P. J., who dissented upon the ground that, as matter of law, the defendant was not shown guilty of actionable negligence, that the deceased assumed the risk and was guilty of contributory negligence.

Judgment and order affirmed, with costs.  