
    James Buckley, as Administrator, etc., of John M. Golden, Deceased, Appellant, v. Westchester Lighting Company, Respondent.
    
      Negligence — a person hilled by touching a broken Urn electric wire—what is not a refusal to cha/rge—reiteration of a charge is unnecessary — question of fact for the jury— contributory negligence—preoccupation and, forgetfulness inconsistent with the conduct of a reasonably careful man — objection after testimony has been■ admitted—motion to strike out.
    
    In an action brought against an electric lighting company to recover damages resulting from the death of the plaintiff’s intestate, who was killed by coming in contact with one of the defendant’s electric light wires, it appeared that some time prior to the accident the wire in question was discovered lying on the ground quite close to a boiler house in which the intestate was employed; that the person who discovered the wire removed it some distance away from the only entrance to the boiler house, and that the intestate, who was aware of the deadly character of the wire, placed boards on and around the wire so' as to fence it in; that the defendant sent two linemen to repair the wire, and that upon their arrival one of them took the wire near the door of the boiler hóusé and began to splice it.
    The intestate returned to the boiler house, but whether he did so before or after the work of repairing had been commenced was disputed. During the progress of' the repairs the intestate stepped out of the boiler house backwards and came in contact with the wire and was killed. The witnesses estimated the time during which the intestate was in the boiler house at from five to twenty minutes.
    
      Held, that the question of the defendant’s liability was one of fact for the jury, and that a judgment entered upon a verdict in favor of the defendant should be affirmed;
    That the following response, made by the court in answer to a request to charge made by the plaintiff, “Yes. I will not touch that any more than I have,” was not susceptible of a construction that the court declined to charge the request;
    That it was proper for the court to refuse to reiterate, in language suggested by the plaintiff’s counsel, a proposition of law which had been theretofore fully and sufficiently charged;
    That it was not error for the court, in answer to a request by the plaintiff’s counsel for a charge that “the deceased was lawfully in the boiler house, and was not obliged to apprehend danger from a live wire on the ground immediately at the entrance of the boiler house, if it was not there when he entered the house,” to reply, ‘' I will leave all these questions to the j ury.. It is a question of fact;”
    That the following charge, “Whatever was the cause of the breaking of the defendant’s wire, and whosoever’s fault it may have been, the deceased was required to exercise the care of a reasonably prudent man to avoid contact with the wire, and if he knew its location or if he ought to have known it and neglected to keep a reasonably safe distance from the wire, and, therefore, came in contact with it by accidentally stepping npon it, there can be no recovery in this action,” was not objectionable in that the court did not charge that the intestate’s negligence must be such as contributed to the accident; that such an objection was hypercritical;
    That it was proper for the court to charge that “If the deceased, knowing the proximity of this wire and the danger thereof, became preoccupied in any way and forgot about the danger, and his so doing was a failure to remain as alert and watchful as a reasonably careful man should, under the circumstances, then there can be no recovery in this action; ”
    That, by such charge, the court did not instruct the jury that a recovery by the. plaintiff would be defeated by mere preoccupation and forgetfulness on the part of the intestate, but by a preoccupation and forgetfulness which was: inconsistent with the conduct of a reasonably careful, man under the circumstances.
    Where incompetent testimony is admitted and objection and exception are not: taken until subsequent to the admission of the testimony, no legal error is presented.
    The remedy in such case is by motion to strike it out.
    Hooker, J., dissented.
    Appeal by the plaintiff, James Buckley, as administrator, etc., of John M. Golden, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 21st day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the oth day of March, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Jacob Marks, for the appellant.
    
      Franle Verner Johnson [E. Clyde Sherwood with him on the brief], for the respondent.
   Jenks, J.:

The plaintiff charges an electric lighting company with negli- ' gence in that it permitted its wire to be and to remain out of repair and broken, and yet alive, whereby plaintiff’s intestate, then upon a public street, came into contact with the wire and was killed. The jury found that both parties were negligent, and for the defendant.”

The intestate was an engineer of a boiler in a building on North street, New Rochelle. In the daytime Mr. Stroebel, a lineman of the New York Telephone Company, saw the wire lying on the ground and spluttering fire. It was then quite close to the boiler. house. Mr. Stroebel lifted the wire by tape insulation and.placed it close to a pole and in the rear of the boiler house some distance away from its only entrance. Then the intestate placed boards on and around it so as to fence it in. The defendant had been notified of the break, and sent in haste two linemen to. repair the wire. Upon their arrival one.of them, Mr. Pfeiffer, took the wire bade to the sidewalk and they there began the work of repair which was a process of splicing. The wires being repaired were then in the vicinity of the door of the boiler house. The intestate during this work of repair stepped out of the boiler house, and fell dead. In ■all probability, he came into contact with a live wire. No other «cause of his death is suggested, and the attendant circumstances point to death from an electric shock from the wire or wires which were then charged with lethal current. There w.as dispute whether the intestate went into the boiler house before repairs were begun. Mr. Stroebel, for the plaintiff, testifies that the intestate did enter it before that time, and remained there until he stepped out to his death. 'But the two linemen • testify for the defendant that the intestate was present when they began their work (and one also says when they laid it out), and that Mr. Pfeiffer then told him that there was enough current in the wire to kill six men. But so far as this bears upon the dangerous character of the wire, even Mr. Stroebel testifies that Mr. Pfeiffer warned the intestate of its deadly character, but that the intestate was in the boiler house at that time. In any event, the evidence that the intestate knew of the dangerous character of the wire before the. arrival of the repairers is overwhelming, The plaintiff’s witness, Mr. Stroebel, testifies that the intestate came out of the boiler house backwards. The witnesses vary from five to twenty minutes in estimating the time during' which the intestate was in the boiler house. I think that the case was properly for the jury, and that no reason appears from the facts for disturbing its verdict.

The learned counsel for the appellant insists that the learned court erred in several rulings, which are fatal to the judgment. At the close of the main charge the court was asked by the plaintiff to charge: “ That Golden had the right to assume that while he was inside the boiler house engaged in the performance of his duties, the defendant’s employees would not place a live wire near the entrance of that house where it would become dangerous to him.” The court replied: “Yes. I will not touch that any. more than I have.” The appellant says that the court refused to charge the request. I think otherwise. It answered “ Yes,” thereby in effect so charging the jury. I cannot construe the entire' response of the court: “ Yes. I will not touch that any more than I have,” save as a statement by the court that it would, charge- and that it did charge the request, but that it would decline to charge further than it'had charged in the main body of the charge and in that request; If the exception be to the refusal to charge this request, it is not good because there was no refusal. If the exception be to thó declination to charge any further, then, of course, it is not well taken, for the learned counsel should have made further specific requests. The criticism that the answer “ Yes. I will not touch that any more than I have,” is a refusal, ignores “ yes ” and the period after it, or assumes that a refusal to go further negatives or retracts the “yes.” The learned court, Keogh, J., had instructed the jury in the main charge: “ The plaintiff also insists that he has proven that ordinary care on the part of the men who did' this work would have been to have gone back 200 feet to the electric pole and there turned off the current altogether, and that as he was mending and dealing with a thing the deadliness of which is admitted by everybody, ordinary care should have compelled him to have gone back, climbed up this pole and turned off the current. * * * You are confined in this case to deciding whether the defendant’s servants were guilty of negligence after they discovered the broken wire and while they were mending it; and you know as well as I that when I speak of care, it means such care as a man of ordinary prudence and ordinary wit would apply to the work he was doing. * * * You must adapt your care to the work you are doing. So in deciding whether these people acted sensibly and prudently and with ordinary care, you must remember what they were doing. * * * I referred to the conditions before the wire broke, to show you that he knew the danger of the wire, what it was, and that he picked it up with dry wood and put it over the fence. Did he in backing out or walking out of this boiler house, in the way you find he did, use the care and that watchfulness that a man should do stepping near a deadly thing 1 * * * Now suppose you find that the company’s servants were negligent men, and that Golden was not negligent, then you come to the question of how much you should pay him.”

The plaintiff’s counsel also asked the court to charge : “ If the defendant’s employees in repairing the broken wire while the deceased was inside the boiler house, carelessly allowed a portion of the live wire to reach the ground near the doorway of the boiler house, and the deceased without knowing the live wire was near the doorway, and, while exercising care, came out of the doorway, and came in contact with the live wire neái* the door, while stepping out of the door, and received a shock which caused' his death, the defendant is responsible. The court: I will leave that to the jury. That is a second summing up. Plaintiff’s counsel: I except.” The court theretofore had fully and sufficiently charged the law and it was not bound to reiterate it in the proposition presented, or in the form of that proposition-. (Rexter v. Starin, 73 N. Y. 601.)

The court was also requested by the plaintiff’s counsel to charge that “ the deceased was lawfully in the. boiler house,, and was not obliged to apprehend danger from a live wire on the ground immediately at the entrance of the boiler house, if it was not there when he entered the house. The court: I will leave all these questions to the jury. It is a question of fact.” Exception was then taken. Whether the intestate was “ obliged ” to apprehend danger manifestly depended upon the surrounding facts and circumstances. Assume that the jury found that the intestate was fully apprised of the thrice deadly character of the wire, and that it credited the testimony of Mr. Wallace, one of the repairers, that while they were laying out their work, the intestate was “ around there,” that he stood “ for quite a while there in full view of us doing our work,” and that he remained in the boiler house only five minutes, or even that while he was in the boiler- house, as testified to by plaintiff’s witness Stroebel, the linemen then warned him that the wire was alive, can it be said as matter of law that he was not under a legal obligation (i. e., in the exercise of due care, bound) ;to apprehend danger even if the wire was not immediately at the entrance when he entered the house. The request is not that he was not to apprehend that a live wire would be near the entrance to the house, but that he was not to apprehend danger from a live wire near the house, if the wire were not near the house when he entered it.

•The court, under exception, charged : Whatever was the cause of the breaking of the defendant’s wire, and whosoever’s fault it may have been, the deceased was required to exercise the care of a reasonably prudent man to avoid contact with the wire, and if he knew its location or if he ought to have known it and neglected to keep a reasonably safe distance from the wire, and, therefore, came in contact with it by accidentally stepping upon it, there can-be no recovery in this action.” This is objected to, in that the court did not charge the jury that the intestate’s negligence must be such as contributed to the accident. I think this is hypercriticism. The theory of the plaintiff was that death was caused by electrocution. The negligence referred is that of coming in contact with the living wire, which was, of course, a contributing cause.

The court also charged, under the plaintiff’s exception : “ If the deceased, knowing the proximity of this wire and the danger thereof, became preoccupied in any way and forgot about the danger, and his so doing was a failure to remain as alert and watchful as a reasonably careful man should under the circumstances, then there can be no recovery in this action.” The learned counsel for the appellant argues at great length and with much earnestness that the exception is well taken. He places this charge side by side with that made in Lewis v. Long Island Railroad Co. (162 N. Y. 60, 61), and then says that we have “ almost ” the charge condemned in that case. The charge in the Lewis case was as follows: “ If you find that the engineer of the defendant’s train, after seeing the horses attached to the tally-ho in which plaintiff was seated, omitted to do any aot which might have prevented the collision or might have lessened the danger to plaintiff, defendant was guilty of negligence.” The essential and the saving difference for the case at bar is in these words of the learned trial justice: “ And his so doing was a failure to remain as alert and watchful as a reasonably careful mam should under the circumstances.” Examination of the opinion in Lewis’ case will show that the gist of the criticism is that the jury might have understood that negligence of the defendant might be based upon the omission of the engineer to do any act which the jury, at the time of trial, might have believed would have prevented the collision. The charge in the case at bar is not that mere preoccupation and forgetfulness of the intestate defeated recovery, but a preoccupation and forgetfulness that was inconsistent with the cón.duct of a reasonably careful man under the circumstances. Under this charge the jury were free to find a verdict for the plaintiff, even though he were preoccupied and forgetful, provided he was, notwithstanding such lapse,- in the exercise of due care.

■ The exception to the testimony that the dangerous character of the wire had been theretofore called to the attention of the intestate is not well taken. The objection was taken subsequent to the testimony, and the remedy of the plaintiff was a motion to strike it out. (Link v. Sheldon, 136 N. Y. 1, 9.) Even if erroneously admitted, it. bore solely upon the question of notice, which, beyond dispute, was fully proven by competent evidence.. In no event, therefore, could it justify the disturbance of the verdict.

The judgment and order should be affirmed, with costs.

AJ1 concurred, except Hooker, J., dissenting.

Judgment and order affirmed, with costs.  