
    William Estabrook, Respondent, v. Newburgh Light, Heat and Power Company, Appellant, Impleaded with Orange County Traction Company, Defendant.
    Second Department,
    December 2, 1910.
    Electricity — negligence — injury to person cutting limbs from tree — , evidence not justifying recovery.
    Action against an electric power company to recover damages for personal injuries received by one who while cutting limbs from a tree fell to the ground. Defendant was charged with negligence in maintaining high tension wires in such proximity to the. limbs of the tree as to transmit electricity thereto so as to shock the plaintiff and cause him to fall. , Evidence examined, and held, insufficient to justify a recovery.
    In order to hold defendant-liable for injuries so received the plaintiff must establish by a fair preponderance of evidence that he sustained an electric shock which was the immediate cause of his fall, that the electricity came from the defendant’s wires, and that.it was negligent in the construction or in the maintenance of the same.
    Hirschberg, P. J., dissented.
    
      Appeal by the defendant, the.Newburgh Light,'Heát and Power Company, from a judgment of the. Supreme Court , in favor of the plaintiff, entered in the office of the clerk of the county of' Orange on the 4th day of November, 1909,.upon the verdict of a jury, for $.10,000, and also from an order entered in. said clerk’s office on the 10th day of November, 1909, denying the said defendant’s motion for a new trial made upon the minutes. ' '
    
      Arthior F. .Gotthold [John L. Willie with'him.on the brief], for the appellant. ■ .' :
    
      R. II. Barnett, for the respondent.
   Burr, J.:

■ ■ Plaintiff, a-,laborer, was employed by the city of Newburgh. On. August 12, 1907, he was sent to. cut- down 'an elm tree on North Water street in said city. With the assistance of two others he'had removed two' of its limbs. While so engaged ■ he stood upon a wbodeii ladder. In order to reach a third., limb he stepped from the top of the ladder, took hold of the. trunk' of the tree with his bands, placed' his right foot in a crotch of thé.tree, drove a climbing spur,which.was upon, his left, foot, into the trunk, and almost'immediately thereafter fell to the ground, .sustaining serious' injuries.' ■

In order to hold defendant responsible for his ..fall, and the consequences thereof, he must establish, by' a fair preponderance of • evidencé, that lie sustained an electric shock which was the immediate cause of his fall; that the electricity causing1, such shock came' from, defendant’s wires, and that defendant was negligent in -the construction'or maintenance of .the same. v .

Upon each of these-basic'propositions plaintiff has failed.' It is conceded that' defendant maintained five wires carrying a heavy current of electricity in close proximity to the. tree, and, that it had done so for'more than a year. before the accident. - .There is no proof that in the original construction'defendant failed to'- exercise reasonable care... The wires were carried upon.poles.at a height of about thirty feet from the ground. They .were. of .a kind known as No. 4 triple-braided, weather-proof copper wire. With .regard to-this the electrical expert called for plaintiff' testified: I do not ■ think there is anything better known to the art-that-can be used for overhead transmission, commercially, than this Wire. In other words, this wire which was being used here on this pole line, was as good wire as could be. used or was used anywhere.” The accident happened within 600 feet of the northerly boundary line of the city, in a suburban neighborhood where there were only two houses on both .sides of the block where it occurred. The same expert testified : “ I would not consider it expedient by reason of congested population to put the wires underground' at that particular place. So that in constructing a line there I would construct an aerial line properly constructed.” Again, during his cross-examination that was intended to establish that this was the usu’al, ordinary and reasonably safe method of construction," the court interrupted • defendant’s counsel with this statement: “ If you will pardon me, I do not see the materiality of this, as I am not going to charge -the jury at all that the mere fact that there were overhead wires theré carrying a voltage of 13;000 that negligence can be inferred from that.” To this statement plaintiff’s counsel made no objection, and the examination was suspended.

It is not claimed that plaintiff came in actual, contact with any of these wires, as a result of which he sustained an electric shock. His contention is that electric current had passed from them into the limbs and trunk-of the tree, so that when his body came in contact. with the tree he received an electrical shock in consequence thereof. The only criticism upon defendant’s conduct is based upon the assumption that defendant was negligent in the maintenance of its wires, because it did hot keep- the branches of the tree so trimmed away that they could not come in contact- with these highly charged wire's. No witness was called who claimed that on the day of the accident or immediately preceding that day, they saw any actual "contact between the tree or any part of it and either of defendant’s wires. Thorpe, who was at one time in the employ of the defendant and who severed his connection with it for' reasons which, according to his statement, were satisfactory to him, did testify- that “At times they [the wires] would not be entirely free from the limbs; at times would come in contact. That is, the branches would reach "down on them.” He did not undertake to say when this was, nor the attending circumstances, whether when a high wind prevailed or during a cálm, and his testimony as to the location of the wires of the defendant company, the ;poles supporting the same, the wires of a trolley company and those of a telephone company, which were also strung in the immediate neighborhood, was so vague and indefinite as to make it as to such contact of little probative value. The evidence is undisputed that the weather was hot and dry.on the day of the accident, and that there was only a light breeze blowing, although it is claimed that tlie leaves of the tree were moist from dew at the time when plaintiff fell.

/ As against this vague testimony is the direct and positive testimony of ¡Richards, who was manager of the electrical department of defendant from October, 1903, to ¡M¡ay 1, 1909, but who was not in its employ at the-time of the trial, to the effect that when originally strung the wires were placed so as to be entirely free from the tree. There was no evidence that subsequently to that time the wires had .stretched, or sagged. The same witness further testified that inspection was liad on an average of three times a month,'and that in July preceding the date- of the- accident .an inspection was inade, and that at that time not only was there no limb* but not even a branch' or twig nearer to defendant’s wires than a foot or eighteen inches, a distance concededly too great for the electric current to pass from the wire into. the. tree. . His testimony is confirmed by that of Hannan, who was superintendent of construction for defendant for a period of ten or twelve years, and who testified that in the afternoon of the ■ day of the accident he examined the tree and found the same condition to exist as existed in the July preceding; that the' insulation on defendant’s wires was not “ burned,;charred or frayed,” as would be the case “ if there is a ground or the passage of current through that insulation,” and that after such examination and while the current was still on, standing upon the groundj he touched the tree and “There wasn’t any current that escaped from the trunk of that tree into my hand or through my body into the groiind.” Three men accompanied him on the afternoon of the day of the accident. Two of them, Who were no longer in defendant’s employ,- were called as witnesses ánd confirmed his, testimony. The third man is dead. One of the men who trimmed' the tree in July, 1907, and 'who was in defendant’s employ at the' time of the trial, was also called, and testified that no branch of the tree came within a foot or fifteen inches of defendant’s wires.

The only facts from which a jury could be asked to find that plaintiff received an electric shock immediately preceding his fall, are that on this trial he testified that as he drove his spur into the tree he “ got a jerk and * * * straightened out,” and that afterward he had burns upon his back and his left foot. Neither of the men who were at work with him, who were called as witnesses in his behalf, so far as their testimony indicates, observed any convulsive movement on his part at that time. A former action, brought by plaintiff against the same defendant to recover for injuries result ing from the same accident,, was tried before Mr. Justice Keogh and resulted in a nonsuit. It is exceedingly suggestive. that the transcript of the stenographer’s minutes of that trial shows that plaintiff said nothing on that, occasion 'about feeling any jerk. On. this trial he boldly asserted that he did so testify, and that the stenographer’s minutes were incorréct. If he had admitted that lie did not so testify, either because his attention was not called to it or because he did not realize its importance, it possibly might be' accepted as the truth. But the accuracy of the stenographer’s minutes is Confirmed by the testimony of one- of the associate counsel for defendant upon the first trial, who himself took minutes of plaintiff’s examination and cross-examination, and asserts that he said nothing of the kind. The two men who were his associates at the time of -the accident, and who had previously testified in his behalf, were recalled at the close of defendant’s case for examination upon this point. One of them testified that he thought he heard plaintiff say something in his testimony on the first trial about a jerk or stiffening, but that he would not be certain about it, and the other rather guardedly said, as I recall it he said he' got a jerk,” but on cross-examination he said, “ I do not exactly remember, of course I have an idea.” In-view of the bias of these witnesses toward plaintiff, manifested or admitted, testimony of such character. has little probative force, and it is impossible to resist the conclusion that the testimony of plaintiff,'given on this trial, that he felt a “ a jerk ” is constrained by the exigencies of the occasion, and should not be accepted as true.

So with regard to the burns upon plaintiff’s person. • The testimo.ny of the nurse who attended him when he was brought to the hospital, immediately after the accident, is to the effect that when he was brought in she bathed him and'examined his back ; that there were small abrasions there, and one upon liis foot, which could be accounted for by the fall, but nothing in the ilature of a blister. .The doctor who attended him at the hospital also testified to the existence of abrasions, but that there were no burns. It is true that upon a former'trial of the action the doctor testified as follows : 61 Did you examine his body to see if there were any scars oh it or burns % A. I examined liis body, yes, sir, all over.. Q. Were there any burns on his back or scars of fresh burns of any indication's of any fresh wounds ? A. No, sir. Q. Were there any on his lef-t foot % A. No, sir.” In one sense, a fresh abrasion may be termed a fresh- ' ^wound, but it may be doubted whether in the connection in which the word Avas used, namely, in connection Avith burns or scars óf fresh burns, filie words “fresh, wounds” wmuld suggest an abrasion to the witness’ mind, Beyond that, the doctor testified that after the first trial he had refreshed his recollection from the hospital chart and conversation Avith' one of the nurses in charge as to the existence of these abrasions. The only.affirmative evidence as to the existence of burns is that of plaintiff’s Av-ife and .daughter,'and one of his companions, to the ¿Sect that from three, to five .days after his fall and after he had been femoved'from the hospital to his. home, their attention was called to. these marks of injury upon liisback’and foot. It would; not be surprising if' they Avere ’ unable to determine from appearance at that-time whether these Avere the result of a burn or an abrasion. One of the medical experts called by plaintiff, who did not see him until nearly nine months after the trial, admitted that in pronouncing the scars to - be the result of • burns, as he did, he relied entirely on the history of the case and ■not on'his observation, and that eliminating such history lie could not tell Avhether the scar'Avas the result, of a burn or flame ora Avou-nd. The othér medical expert,' who did not see ¡ilaintifi until May, 1909, admitted that leaving out the' matter of .burns, every symptom revealed by plaintiff’s condition which he had discovered could have been produced. by and attributed, to shock resulting from a fall alone. Neither of plaintiff’s companions at the time of his fall observed .any''flash or heard any report, or observed any burns upon his clothing or shoes, although one of them helped to remove his climbing ir.ons after he had fallen, nor is his clothing produced showing the existence of any burns. Of still greater consequence is the fact that, according to the evidence of plaintiff and both of. his companions, no part of his back came in contact with the tree, and the . electrical expert called by plaintiff testified .as follows: •“ Assuming a man’s bare hands are in contact with an electrically charged body, his foot is in contact with the electrically charged body, his own person is. clothed with ordinary clothing; and assuming that that person finds afterwards that there are blisters on his back, and assuming that his back is not in contact with any electrically charged body,. I do not see how he got blisters on his back.” The testimony of plaintiff to the effect that neither nursé nor physician examined him while at the hospital, and during the three days that he was there he received no attention from either, is so inherently improbable that, in view of their positive testimony to the contrary, it is as incredible as his assertion that lie testified as to-the “ jerk ” upon the first trial.

There was some testimony given by two witnesses that at some time prior to the date of the accident they had occasionally observed flashes of light in the tree which they deemfed to be of an electrical character. Of itself this evidence is of'little value in fixing any responsibility upon dhe defendant, in view of the uncontradicted testimony that the wires of a telephone company and the guy wire which supports the feed wires of a street surface railroad company passed through the same tree, and that before the accident and in the month of July it was discovered that this guy wire had come in contact with one of the-branches of the tree, which was burned.and charred in consequence thereof.

When a jury has passed upon conflicting statements and the justice presiding at the trial has declined to set aside its verdict as as against the weight of evidence, an appellate court often hesitates to interfere upon that ground. We are so firmly convinced that plaintiff’s case is without merit and. that the- verdict was in part influenced by testimony manufactured to meet the apparent' necessities thereof, that we should fail in performing our duty if we allowed this judgment to stand. .

■ The judgment and order appealed from should be reversed and . a new trial granted,-costs to abide the event.

Woodward, Eioh and Carr, JJ., concurred ; Hirschberg, B. J.,. dissented. ' '

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