
    Michael Devine, as Administrator, etc., of James Devine, Deceased, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Negligence—tossing a boy into the air by the sudden raising of an electric cable suspended on pojes in the street, a thirty-foot loop of which was lying in the gutter— evidence of the existence of a street.
    
    Where an action is brought against an electric railroad company, predicated upon its negligence, and the tortious act was done in a thoroughfare which was paved, curbed, flagged and used as a public street, it is not necessary to a recovery that the plaintiff should show that the part of the street in question had actually been opened by legal proceedings, instituted by the municipal authorities.
    If a street is in public use, an individual has as much right there as the agents of an electric railroad company.
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it ajjpeared that the defendant was engaged in stringing cables upon iron poles; that several hundred feet of the cable hung in loops from the cross bars of the poles; that, in order to get the cable into position, it was customary to haul it taut by means of a team of horses stationed at one end; that at the place of the accident a loop of the cable lay in the gutter of the street for a distance, of about thirty feet; that the deceased, a boy, aged eight years, started to cross the street; that, as he was crossing the cable, a signal was given to the team to go ahead; that the cable was drawn taut; that it caught the deceased between the legs, tossed him in the air to a height of twenty or twenty-five feet, and that his skull was fractured in falling,
    
      Held, that the acts of the defendant, in permitting the cable to remain in the gutter, and in raising it suddenly without notice to persons who were lawfully using the street, constituted negligence.
    
      Appeal by the plaintiff, Michael Devine, as administrator, etc., of J ames Devine, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of May, 1895, upon the dismissal of a complaint directed by the court after a trial before the court and a jury at the Kings County Circuit.
    
      Almet F. denies, for the appellant,
    
      S. Stewart Whitehouse, for the respondent.
   Willard Bartlett, J.:

The complaint in this action alleges and the answer admits that on the 19th day of July, 1893, the defendant corporation was constructing an electric railroad through and along Second avenue, in the city of Brooklyn, and was engaged in stringing or hanging its •cables or feed wires on iron posts erected on said avenue.

The complaint further alleges that on that day, while James Devine, the plaintiff’s intestate, was crossing Second avenue, the defendant, its agents and servants, conducted themselves so negligently that one of the cables or feed wires which they were at that time erecting, stringing or hanging, caught said James Devine and carried him upwards into the air, a distance of about twenty feet, from which height he fell to the ground with such violence as to suffer injuries from which he died.

This allegation of negligence was denied by the answer. The plaintiff gave evidence tending to support it, and, at the close of his case, the counsel for the defendant moved for a dismissal on two grounds: First, that the proofs failed to show any negligence on the part of the defendant or the absence of contributory negligence on the part of the lad who was killed; and, second, that the place where the accident occurred had not been shown to be a public street. The court granted the motion, not on the ground that the place was not a public street, but because, in the opinion of the learned trial judge, the plaintiff had failed to prove any negligence on the part of the defendant.

The accident happened on Second avenue, between Thirty-fifth and Thirty-sixth streets. The evidence showed that at the time of the accident Second avenue, from Twenty-eighth to Sixty-fifth streets, was an open thoroughfare; that it was paved, curbed and flagged, and that it was used as a public street by the people living in that district and the general public. In view of these facts, it was wholly immaterial, so far as the plaintiffs cause of action was 'concerned, whether that particular part of the avenue in which the accident happened had actually been opened by legal proceedings instituted by the municipal authorities. Second avenue at that point was in public use as a public street, and the plaintiffs intestate had just as much right there as the agents of the defendant. The trial court was right, therefore, in refusing to base the dismissal of the complaint on this ground.

But we do not think that the complaint should have been dismissed at all. The testimony of those who witnessed the accident, if believed by a jury, would amply warrant the inference that the agents of the -defendant did their work in a careless and negligent maimer. They were engaged in hoisting an electric cable into position on poles •along the side of the street. Several hundred feet of this cable had been hung on the cross bars at the top of the poles and allowed to drop down in loops. To get the cable into position it was then hauled taut by means of a team at one end. The loop between Thirty-fifth and Thirty-sixth streets came down to the ground and lay in the gutter for a distance of about thirty feet. While the cable lay in this position a group of lads, among whom was the plaintiffs intestate, a boy about eight years of age, started to cross the street. As James Devine stepped across the wire the men engaged in stringing the cable gave the signal for the team to go ahead; the cable as it was made taut rose in the air, catching the lad between the legs and tossing him up a distance of twenty or twenty-five feet. This fall fractured his skull and he died five days afterward.

In granting the motion to dismiss the complaint the learned trial judge seems to have acted upon the view that the cable was not in a place where it would be likely to entangle horses, vehicles or persons, and that it was raised in such a slow manner that no negligence could be predicated of the way in which the work was done. “ Any person passing over it,” he said, would know it was not a thing that shoots in the air or was propelled in such a way as to strike persons suddenly and injure them.” It seems to us, however, that ■a cable or wire, lying in the bed of a gutter on a public street for a distance of thirty feet or more, is something which is extremely likely, in the ordinary course of things, to interfere with the free 'use of the street by persons entitled to use it, particularly when it is liable at any instant to be raised from its position to a height of many feet above the ground. To put a cable or wire in such a place and raise it suddenly, without taking any means to notify persons on the street of its presence or the intention to lift it, would clearly be negligent as to any one lawfully upon the street and who was injured thereby while in the exercise of due care himself. The assumption that the movement of this particular cable, on this particular occasion, was slow, is directly at variance with the proof. If the cable had moved slowly it would be utterly impossible, in the nature of things, that the deceased lad should have been thrown twenty feet up into the air. The eye witnesses of the accident agree upon this point, and for the purposes of the present appeal their testimony must he taken as true. The inference to be drawn from it is that the motion of the cable, instead of being moderate, was more like that of a how string when an arrow is discharged.

W e are clear that there was a question for the jury in this case. The judgment appealed from must be reversed and a new trial granted, costs to abide the event.

All concurred.

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