
    Ervin A. Keith, Appellant, v. Daniel F. Payne, Respondent.
    Third Department,
    November 25, 1914.
    Electricity—negligence—maintenance of wire bearing high tension, current within few feet of ground—contributory negligence.
    A defendant who maintains an electric lighting plant and transmits a high tension current over an insufficiently insulated wire along a right of way through an unfeneed field, and who allows such wire to sag to within a few feet of the ground, may be found guilty of gross negligence and liable for injuries to a person who attempted to pass under the wire. And this is true although the plaintiff went upon the premises as a mere licensee.
    Where it appeared that the plaintiff was informed by his wife that the wire was near the ground and that he should investigate as their children when at play might touch it, he was not guilty of contributory negligence as a matter of law in inspecting the cable, that question being for the jury.
    Kellogg and Howard, JJ., dissented.
    Appeal by the plaintiff, Ervin A. Keith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 5th day of May, 1914, upon a dismissal of the complaint by direction of the court at'the close of plaintiff’s case.
    
      Frederick E. Bowen [Owen D. Connolly and H. P. Humphrey with him on the brief], for the appellant.
    
      Stokes & Owen [Harry E. Owen of counsel], for the respondent.
   Smith, P. J.:

The defendant operated an electric lighting plant at Wad-hams. The current was carried to Westport by means of wires. At Westport the plaintiff rented a house and lot of Mr. Sullivan, back of which was an open field owned by Sullivan, over which the defendant had a right of way one rod wide for his wires and access thereto.

On June 13, 1912, the defendant’s servants were at work upon the line moving the transformer house, and at six o’clock, when they were ready to quit work for the day, the wire was suspended from an arm on the transformer house to a pole in his right of way, about one hundred and fifty-four feet distant, and sagged so that at its lowest point it was within four or five feet of the ground. The wire was used for day and night service, and frequently the plaintiff’s little children went beyond the yard and garden spot upon the other premises of Sullivan in the neighborhood of the electric wires. When the plaintiff returned from his work his wife informed him that the wires were lower than usual and to go there and see if they were insulated because she was afraid the children would get hold of them. He went to the wires for that purpose about seven-thirty or eight o’clock p. m., and when about ten feet from the wires saw them. It was growing dark. He says: “ It was quite light and still it wasn’t full light.” He leaned down to go under them and that was the last he knew until he found himself upon the ground with one hand against the wire, one leg up and in his hand, and he was severely burned in several places. He had lived in the house for three months and in the immediate vicinity a longer time. He understood the line carried the power from Wadhams to Westport and supposed that electricity coming over the wire was dangerous. He was asked: “There was danger to be apprehended to a person coming in contact with this electric wire ? A. Yes, sir. Q. And that is the reason why you stooped, I suppose, to get under that first wire, wasn’t it; you didn’t want to come in contact with those wires, did you ? A. Ho, sir.” He says he did not know the power was furnished over the wires during the day time as well as the night. He says fights were fit in the agent’s office in the morning and early in the evening. He does not say that he understood or believed that power was not upon the wires.

He was about thirty years of age, six feet two and a half inches high and was baggageman at the railroad station in the immediate vicinity. After the accident he found a small spot on the wire not insulated, near where his hand was. He swore on direct examination that he noticed a wire coiled up on the transformer house and said it was before the accident. On redirect examination the court asked the question: “You said something about having seen a coil of wire some place that night, where did you see that ? A. On the transformer house. Q. A coil hanging there ? A. Yes, sir. Q. Was that the transformer house after it had been moved ? A. Yes, sir. Q. And you saw that when ? A. After I got hurt. Q. You hadn’t seen it before ? A. No, sir.”

It was not unreasonable that persons might pass across the unfenced lands of Mr. Sullivan and go under the wires belonging to the defendant, and when he left his wires conveying a deadly current within four or five feet of the ground upon those unfenced premises, without any warning, it was an act of gross negligence.

Even assuming that plaintiff was a mere licensee, the danger was so great that the jury might have said that the negligence was sufficient to charge the defendant therewith.

Nor do I think the plaintiff was guilty of contributory negligence as matter of law. He was asked by his wife to examine to see whether the wires were insulated for the purpose of ascertaining whether there was danger to the children in playing thereabout. Confessedly the wires were insulated except that at one small point the insulation was worn off. It is a fact that that insulation was wholly insufficient to protect any one coming in contact with wires carrying so strong a current, but it does not appear that the plaintiff had knowledge that the insulation was insufficient; he swears that he did not purposely touch the wires but attempted to go under them and does not remember how he came to come in contact with them. With the apparent insulation, even if he had taken hold of the wire to lift it that he might go under, it would still be a question of fact whether he had not the right to assume that his act was safe, but without evidence that he purposely took hold of the wire it seems clear that it is for the jury to say whether under all the circumstances of the case the plaintiff acted with the care of an ordinarily prudent person.

For these reasons we are of opinion that the judgment of nonsuit was wrong and that the case should have been submitted to the jury.

All concurred, except Kellogg and Howard, JJ., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide the event.  