
    May Magee, as Administratrix, etc., of D’Arcy Magee, Deceased, Respondent, v. New York Telephone Company and Staten Island Midland Railway Company, Appellants.
    Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 27th day of June, 1912, upon a verdict, and from an order, entered on the 11th day of July, 1912, denying a motion for a new trial.
   Judgment and order appealed from reversed and a new trial ordered, with costs to appellants to abide the event, unless the plaintiff stipulates to reduce the verdict to the sum of $10,000, in which event the judgment as so modified and the order appealed from are affirmed, without costs. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Ingraham, P. J., dissented as to the defendant Staten Island Midland Railway Company, and voted for reversal and dismissal of the complaint as to said defendant.

Ingraham, P. J. (dissenting):

I concur in the affirmance of this judgment as to the Hew York Telephone Company, but dissent as to the affirmance of the judgment against the Staten Island Midland Railway Company. The railroad company under legal authority strung- its feed wire upon its own poles to provide electric current for the operation of its railroad. When that feed wire was placed in position there were no wires of any kind maintained by the telephone company with which it could interfere, and, but for the subsequent action of the telephone company in placing a guy wire to support its own pole, no accident could have happened. Subsequent to the installation of the feed wire by the railroad company the telephone company, wishing to place upon its poles a cable containing telephone wires, found it necessary to strengthen its poles and so placed in position the guy wire for that purpose. It was solely the act of the telephone company in placing this guy wire, and for that the railroad company was not responsible. In placing the guy wire in position the telephone company installed it so that no current from it could affect a person on the ground, but failed to place an insulator above the pole so that if the feed wire did come in contact with it, it would be dangerous to a person interfering with it above the point of contact; and it is the absence of this insulator that caused the injury. I do not see how the railroad company could have ascertained the fact that there was no insulator on the guy wire above the point of contact with its feed wire, or that it was bound to anticipate that the telephone company would fail to properly insulate the guy wire. The plaintiff’s intestate had no relation with the railroad company, and the obligation which an employer of labor assumes towards its employee did not exist. It seems to be conceded that the power of the current upon this feed wire was not sufficient to kill a person coming in contact with it, and the accident happened, not because the plaintiff’s intestate was killed by the current, but because the shock was sufficient to cause him to lose his hold upon the pole and thus fall to the ground. There was no evidence that the railroad company knew that the telephone company’s employees were in the habit of climbing up this pole; that they knew or had reason to know that the guy wire was not properly insulated, or that from the existing condition any employee of the telephone company would be subject to injury. I cannot see that there was any obligation upon the railroad company to inspect these wires, to anticipate that the plaintiff’s intestate or any other employee of the telephone company would place himself in a position of danger that would result in injury, or that the railroad company was in any way responsible for the accident. I think, therefore, that the judgment against the railroad company should be reversed and the complaint dismissed.  