
    Angela Caruso, as Administratrix, etc., of Luigi Caruso, Deceased, Appellant, v. Troy Gas Company, Respondent.
    Third Department,
    November 13, 1912.
    Negligence — death of boy from electric shock while climbing upon structure in city street — verdict for plaintiff reinstated — liability of company furnishing current — duty to public—cause of accident — submission of case' as one of negligence — authority under permit from city to erect structure.
    In an action to recover for the death of plaintiff’s intestate, a boy about eighteen years of age, killed by an electric shock from wires entering a temporary structure seven or eight feet in height erected next to the sidewalk, while attempting to climb upon the structure in order to see a parade, it appeared that a chamber of commerce had contracted for the installation of wires through the city for the purpose of an electrical display; that the defendant, who furnished the electricity, had erected the structure referred to and connected the wires with converters therein after the contractor for the chamber of commerce had brought the wires into the building. There was a sign upon the door of the structure when erected marked “ Banger—2800 volts,” but a policeman arriving immediately after the accident saw no danger sign on the structure.
    
      Held, that an order setting aside' a verdict for the plaintiff should be reversed and the verdict reinstated;
    That the court erred in saying that the defendant was not responsible and intimating that the chamber of commerce would be responsible.
    The accident was caused.by a combination of circumstances and not by the improper wiring alone.
    
      The defendant owed some duty to the public to see that the situation about the structure and the converters was reasonably safe, and by a violation of that duty it conducted its business in a negligent manner and thus brought about the intestate’s death.
    Although the complaint was framed in negligence, the judgment should not be reversed because the case was submitted to .the jury as one of nuisance.
    A permit from the city to the defendant to erect the structure did not cover the right to install the wires in such a manner as to endanger the public.
    Houghton, J., dissented.
    Appeal by the plaintiff, Angela Caruso, as administratrix, etc., from an order of the Supreme Court, made at the Rensselaer Trial Term and entered in the office of the clerk of the county of Rensselaer on the 8th day of June, 1912, setting aside a verdict in favor of the plaintiff for $1,500, and granting a new trial.
    
      John F. & William H. Murray [Andrew J. Nellis of counsel], for the appellant.
    
      Shaw, Bailey & Murphy [H. D. Bailey of counsel], for the respondent.
   Kellogg, J.:

The Chamber of Commerce of the city of Troy entered into a contract with one Payton for the installation of wires through said city for the purpose of an electrical display at the Hudson-Fulton Celebration. The defendant erected upon Church street, eight or ten feet south of Broadway, upon the sidewalk, a little building or box-like structure, a leanto, sitting up against the wall of the building next the sidewalk and extending out, practically covering the sidewalk. • The structure was about eight feet high next to the building, and about seven feet eight inches high near the curb. Its length along the sidewalk was about twelve feet six inches. Church street was a narrow street or alley but was paved and had sidewalks. The defendant installed in the building two converters, carrying an electrict current of 2,300 volts. The contractor for the Chamber of Commerce brought the wires into the building at the side of the curbing, under the eaves, and apparently about seven feet .above the walk, and the defendant connected up the wires with the converters. The door of the little building was locked and the defendant and the contractor each had a key, and either could turn the current on or off. The defendant was furnishing the current of electricity. When erected there was a sign upon the door of the little building marked “Danger—2300 volts.” The plaintiff’s intestate and two other boys in the evening were out seeing the parade, which was going by on Broadway. From across the street they saw this little building, ran over to it and attempted to climb up on the roof. The plaintiff’s intestate found a tin can, stood upon it, and, in trying to climb-upon the roof grabbed the wires entering the little building, and received an electric shock which caused his death. He was about eighteen years of age. The policeman arriving upon the scene immediately after the accident saw no danger sign on the structure.

A motion for nonsuit was made and argued by counsel. The court intimated that the wires were installed by the Chamber of Commerce and perhaps it would be responsible, but that it could not see how the gas company had done anything for which it was responsible, whether it was a nuisance or not, but finally submitted the case to the jury as to whether the defendant was maintaining a nuisance which caused the intestate’s death. The court was in error in saying that the defendant had done nothing for which it was responsible. The improper wiring alone did not cause the death, it was caused by a combination of circumstances. The defendant built a low structure upon the street for use during the celebration; its height was .such that boys might naturally desire to climb upon it to view the parade. The wires entered the building in an improper manner and without proper protection and with entire disregard to the safety of others. The defendant brought into the building a current of 2,300 volts of electricity to its converters, which were there reduced to 110 volts. Before connecting the wires with its converters and putting in use the building which it had erected and supplying its current, the defendant owed some duty to the public to see that the situation about the building and the converters was reasonably safe, and by a violation of that duty it conducted its business in a negligent manner and thus brought about the intestate’s death. The court submitted to the jury to determine whether the defendant was maintaining a nuisance and whether the death was caused by the deliberate act of the boy or the act of the defendant, calling attention to the fact that the boy was a strong, healthy, robust, intelligent boy, and permitting the jury to take that into consideration in determining whether in climbing upon the building he was reckless, careless and wanton. The jury found for the plaintiff $1,500 damáges. The presiding justice set the verdict aside upon the ground that, as matter of law, there was no nuisance, and that there was no cause of action against the defendant.

The complaint is framed in negligence, charging that the defendant negligently carried its wires close to the sidewalk, into a box on the sidewalk carelessly and unlawfully constructed and maintained by the defendant, which was a trap and thus likely to entice and lure children and others to climb upon the same; that the wires and box were dangerous and that the wires were unguarded, to which was added the allegation “and further said box and wires and apparatus at the time hereinafter mentioned constituted a nuisance.” The accident was unnecessary and was due to the careless and dangerous manner in which the defendant was conducting its current of electricity to or from its building. Whether the intestate’s negligence precluded a recovery was a question for the jury which has been solved against the defendant. Conceding that the intestate was free from negligence, the liability of the defendant upon the conceded facts is clear, and the judgment should not be reversed, because the judge instead of submitting the case to the jury as one of negligence named it as one of nuisance. The defendant was permitted to prove by parol authority from the city to construct the box-liké structure, although no such permission was alleged in the answer. The ruling in that respect was more favorable to the defendant than it had the right to expect. (Clifford v. Dam, 81 N. Y. 52; Blake v. Meyer, 110 App. Div. 734.)

The alleged permit clearly did not cover the right to install the wires in such a manner as to endanger the public. A new trial cannot result in any good to the parties concerned. The order setting aside the verdict should, therefore, be reversed and the verdict reinstated, with costs to the appellant.

All concurred, except Houghton, J., dissenting.

Order setting aside the verdict reversed, and the verdict reinstated, with costs to appellant.  