
    CORNELIA MALATESTA, ADMINISTRATRIX OF FRANK MALATESTA, DECEASED, PLAINTIFF-APPELLANT, v. ATLANTIC CITY AND SHORE RAILROAD COMPANY AND WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANTS-RESPONDENTS.
    Argued March 11, 1915
    Decided November 15, 1915.
    Decedent was employed by Reilly in carting material from the West Jersey and Seashore railroad. The tracks belonged to that company ; the Atlantic City and Shore Railroad Company was operating trolley cars thereon, and for that purpose had a feed wire thirty feet above the ground charged with a current of 32,000 volts. Reilly had laid a temporary track on which he operated a crane. In moving the crane Reilly’s engineer failed to lower the boom although warned to do so. The boom struck the feed wire, and, as a result, decedent was killed. Held, that a verdict was rightly directed for the defendants.
    On appeal from tlie Supreme Court.
    The decedent was employed by one Steelman and was working at the time for Beilly. Beilly was constructing an amiesite road in Atlantic county. The decedent was employed in carting material for Beilly’s work from freight cars at Ocean Heights. The tracks at that point belong to the West Jersey and Seashore Company, and the Atlantic City and Shore Bailroad Company was operating trolley cars thereon. Eor that purpose they had a feed wire thirty feet above the ground charged with a current of 32,000 volts.
    Beilly, for the purpose of facilitating the work of unloading had laid a temporary track near the freight tracks, on which he operated a crane. At the time of the accident it was necessary to move the crane so that it came nearer the railroad tracks over which the feed wire ran. Stewart, who was Beilly’s engineer operating the crane, failed to lower the boom although warned by the fireman to do so. As a result the boom struck the feed wire, caused an arc that melted the wire so that it dropped and hit the decedent, resulting in his death. The trial judge directed a verdict for the defendants.
    
      For the plaintiff-appellant, John F. X. Ries.
    
    For the defendants-respondents, Bourgeois & Coulomb.
    
   The opinion of the court was delivered by

Swayze, J.

We think the trial judge was right in directing a verdict for the defendants for two reasons—first, the proximate cause of the injury was not the character or location of the feed wire, its lack of insulation (if insulation had been practicable), or the lack of guard wires; the accident was due solely to the negligence of Reilly’s engineer, Stewart, in failing to heed the warning of the fireman to lower the boom before moving up; second, neither defendant could, anticipate that a wire thirty feet up in the air would be interfered with by men unloading freight. The defendants had a right to assume that a wire so located would be left alone and even if they might in fact anticipate that Reilly’s men might perchance be negligent, they had the right in law to assume that no trespass would be committed upon their property. As we said in Guinn v. Delaware and Atlantic Telephone Co., 72 N. J. L. 276 (at p. 278), the owner’s right to protect his possession and to use his property is paramount. The case differs from cases like Rowe v. New York and New Jersey Telephone Co., 66 Id. 19; Spires v. Middlesex, &c., Electric Light Co., 70 Id. 355, and Herbert v. Lake Charles Co., the Louisiana case relied on by the appellant. In those cases the physical situation was such that wires were likely to become crossed by natural causes without any intervening culpable agent. Here the injury occurred by reason of the intervention of a culpable Imanan agent. Ho amount of care on the part of the defendants consistent with the conduct of their business in the ordinary way, could guard against possible culpable acts of others. The case is within the rule of Cuff, Administratrix, v. Newark and New York Railroad Co., 35 Id. 17, 29, which was approved in Delaware, Lackawanna and Western Railroad Co. v. Salmon, 39 Id. 299 (at p. 308), although it was inapplicable to the facts of that case.

The judgment is affirmed, with costs.

For affirmance—The Chancellor, Chief Justice, Swayze, Trbnchard, Bergen, Minturn, Black, Yrfjdenburgii, White, Terhune, Hepfeniieimer, Williams, JJ. 12.

For reversal—Garrison, Parker, Kalisch, JJ. 3.  