
    Edward J. Wittleder, an Infant, by Edward G. Wittleder, his Guardian ad Litem, Respondent, v. The Citizens’ Electric Illuminating Company of Brooklyn, Appellant.
    
      Negligence or nuisance — a complaint justifying a recovery on either theory— a boy playing on elevated railroad steps injured' by touching an electric light wire — liability of the electric light company —•proof that it subsequently moved the wire..
    In an action to recover damages for personal injuries, evidence was given tending to show that while the plaintiff, a boy about ten years of age, and another boy were playing upon the landing, of a stairway leading to an elevated railroad station on a public street, the plaintiff, standing with his back to the' railing at the side of the stairway, put’ one foot into the iron lattice work of the railing and, leaning backward, casually extended one arm over the railing, when his hand came m contact with an electric light wire maintained upon the elevated structure, at a distance of from ten to eighteen inches therefrom, . by the defendant, an electric illuminating company, in consequence of which the plaintiff received a severe shock and burn.
    The complaint alleged that the defendant “negligently constructed and operated” the wire “ within one foot oz1 and unlawfully and dangerously near the platform,” and that it “ was not sufficiently nor properly nor carefully insulated nor covered nor protected; ” no motion was made to require the plaintiff to elect whether he would proceed on the theory that the defendant was guilty of negligence or that it maintained a nuisance.
    
      Held, that under the allegations of the complaint and the evidence, the plaintiff was entitled to recover upon either theory;
    That the fact that the boy was a trespasser upon the railroad structure was not available to the defendant, especially as it did not appear that the defendant itself had any right to string its wires on the railroad structure;
    That it could not be said, as a matter of law, that the location óf the wire was not the proximate cause of the accident, or that the defendant could not reasonably have anticipated that children would play upon the stairway.
    In such a case evidence that the defendant’s servants, about a month after the accident, moved the wire farther from the platform, is competent to prove the defendant’s ownership of the wire.
    Appeal by the defendant, ■ The Citizens’ Electric Illuminating Company of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of- the county of Kings on the 12th day of April, 1899, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 14th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      John Notman [lewis H. Freedman with him on the brief], for the appellant.'
    
      Foster L. Backus, for the respondent.
   Goodrich, P. J.:

On July 8, 1898, Edward J. Wittleder, the plaintiff, a boy about ten years of age, was playing with a companion on a platform or landing of the stairway leading to the elevated railroad station on Fifth avenue, at the corner of St. Mark’s place, Brooklyn. Upon the structure of the railroad company were strung electric light wires belonging to the defendant, which extended parallel to the «aid platform, on a crossarm projecting at right angles thereto, and at a distance therefrom variously estimated as from ten to eighteen inches. On ’ each side of the stairway was a balustrade, which, at the platform, extended about four feet above the floor, the space between its hand rail and the platform being taken up by a sheet of iron along the floor and about a foot and a half in height, above which was a lattice work of iron. There was evidence tending to ■show that the plaintiff, with another boy, was playing on this platform ; that while so doing, and standing with his back to the rail, ■lie put one foot into the lattice work, the other being on the floor, and, leaning backward, casually extended one arm over the rail; that his hand came in contact with an electric light wire belonging to the defendant, thus forming’a ground connection between his hand and the foot in the iron lattice work, so that a current of electricity passed from the wire through his body from hand to heel, and he received a severe shock and burn, necessitating the amputation of the thumb and two fingers of his right hand, and other injury.. The jury found a verdict for. §8,000, and from the judgment entered thereon the defendant ajopeals.

As to the order denying the motion for a new trial on the ground that the verdict is against the weight of evidence, we have carefully •examined the record, and while there is some ground for question whether the boy received his injuries exactly in the manner described by him; whether, with his face toward the wire, and reaching out -over the rail, he took hold of the wire, or whether, with his back to the rail and wire, he threw out his arm and touched the wire accidentally, still these were questions of fact which the court was required to, and did, submit to the jury. With that verdict we see no reason to interfere. -

The defendant contends that the complaint sets out an action baséd on its negligence and not on the ground that it maintained a nuisance. This contention is not sound. The complaint alleged that the defendant negligently constructed and operated ” the-wire “ within one foot of -and unlawfully and dangerously near the platform,” and that it “ was not sufficiently nor properly nor care-, fully insulated nor covered nor protected.” This alleges facts sufficient to justify the admission of evidence to establish the existence of a nuisance, inasmuch as the state of affairs complained of existed ■ in a public street or highway. But it is also an allegation of negligence. There was no motion to put the plaintiff to his election, and he would have been entitled to recover on either theory if there was sufficient evidence in other respects for that purpose. ■

It is not necessary for us to pass upon the question on which theory the plaintiff’s right of action depends, for the evidence would lead us to conclude that the jury might have found that the defendant was liable on either theory. A wire carrying along a publie street, in a densely populated city, electricity with a voltage sufficient to inflict the injuries which the boy received, is a constant and imminent menace to the safety of those who approach it, and requires a. degree of care in its erection and maintenance commensurate with its liability to do injury. There was. conflicting evidence as to the unnecessary proximity of the wire to the rail of the balustrade, .and as to the swaying of the wire nearer to the rail on account of the passing of trains, but we think these questions were fairly submitted, to the jury.

The defendant’s exceptions raise a question as to the contributory negligence of the boy, in that he was not lawfully on the platform, and, therefore, was a trespasser. We do not think this is a question which can be raised by the defendant, as not it but the railroad com- ■ pany was the owner of the stairway. It may be conceded that thehoy was a trespasser as against the railroad company, and that within the doctrine of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301) there could have, been no recovery against it for an accident occurring there ' The' defendant, so far as the record shows, seems to have no right to string its wires on the elevated railroad structure. It does not allege any such right in the answer, and there is not sufficient evidence to enable us to pass upon its right to erect or maintain the wire where it was. There were some suggestions looking to that end and to the regulations of the city as to the methods of stringing wires, blit there was none as to any right or license from the railroad company to the defendant to use the railroad structure for such purpose. Eor all that appears, the defendant was just as much a trespasser on the railroad structure as, according to its claims, the boy was. At any rate the defendant is not in a position to defeat the action on the ground referred to.

' The defendant also contends that it could .not reasonably have anticipated an injury to the boy, and that the act of the defendant in locating the wire was not the proximate cause of the accident; but we cannot affirm this as matter of law. It was purely a question of fact on the evidence whether the wire was so dangerously near the rail that a ]Derson using the stairway might be injured by it. The court, in refusing to dismiss the complaint, stated that the only grounds upon which the case would, be submitted to the jury were as to the contributory negligence of the boy, and whether “it •could have been reasonably anticipated that this wire would become a source of danger to people who were invited or permitted to use the stairway; ” and such was the charge. It is hardly necessary to •say that the verdict establishes this fact in the plaintiff’s favor.

There was some evidence to show that the wire in question was not properly insulated and that there was a break iii the insulation at the part touched by the boy. The evidence as to the degree of care exercised by the defendant in the inspection of the wire was rather unsatisfactory, but it is unnecessary to refer to this further than to say that the court did not submit this question to the jury because, •as the learned justice stated, there was nothing to show how long the wire had been in that condition, whether it was in that condition at the time of the accident, or whether the insulating material was burned off by reason of the contact with the boy’s hand.

The defendant excepted to the refusal of the court to charge ■“ that one entering the premises of another, such as the stairs of the elevated railway on Fifth avenue, is a mere licensee, and is himself bound to exercise ordinary care and diligence, and also that these elevated stairs are for the purpose of ingress and egress to the ■ elevated road, and that the defendant could not reasonably anticipate-that boys and girls would be playing on such stairs in a manner to-be injured by ,a wire outside of the railing.” This request must be . taken in its entirety, and, of course, if any part of it was exceptionable, the whole' request was properly refused. It involves three propositions: First, that the plaintiff- was a. mere licensee while on the- stairway for purposes of .play; second, that the stairway is-merely for' the use of elevated railroad passengers ; third, that the defendant could not reasonably have anticipated that children would be playing On such stairway in such a way as to be' injured by a wire. ■ outside the railing. As to the first proposition, we have already declared that the defendant-, not being the owner of the stairway,, was in no position to raise the question of' the plaintiff’s right to be .there. As to the third, it cannot be said, as matter of law, that the defendant could not reasonably have anticipated that children would •be playing on the stairway, as the evidence shows that they often played there; and it is manifest that both tney and .the passengers-. might have their hands on or over the rail. The defendant’s ■ request covered cases of injury to a person from a wire placed anywhere outside the rail and at any distance. The request on this proposal might have been proper as to a wire three feet from the rail, but not where it included in its scope a wire just outside and in close proximity to the rail, and, possibly, a swinging, wire. The request cannot be sustained in its entirety, and the refusal to charge it was proper.

The defendant’s counsel excepted to the admission of evidence to*, prove that, about a month after the accident, the wire was moved farther from the platform by the defendant’s servants. He admits,, however, that this evidence was competent to prove, defendant’s-ownership of the wire, but contends that its admission was error,, inasmuch as Abel, one of the defendant’s employees, wli® was-called as a witness by the plaintiff, had testified that the wire which injured the plaintiff, was owned- by the defendant. A careful reading of the testimony of Abel does not conclusively show that he testified that the wire from which the plaintiff received.his injury belonged to the defendant, and as this was still in doubt the evidence was competent to establish the fact of ownership. "Besides,, the plaintiff had the right to introduce other evidence than Abel’s. testimony on this point, as the jury might not have believed the witness without corroboration.

I should be much better satisfied to reduce this judgment to $5,000, but my -associates think it should not bet.reduced and I yield to their views.

The judgment should be affirmed.

Hirschberg, J., taking no part.

Judgment and order unanimously affirmed, with costs.  