Freedman v. Buffalo General Electric Co. ( 1918 )

De Angelis, J. (dissenting):

At the close of the defendant’s requests to charge and the ruling of the court thereon the record shows this: “ Mr. Thomas: Well, let me put it this way. If the jury find that the deceased touched this wire at any point above the lower circuit breaker, deliberately of his own free act, plaintiff cannot recover. The Court: I think that I shall decline to change my charge with reference to that subject as I have discussed it with the jury. Mr. Thomas: Grant me the exception to the refusal to charge as requested. The Court: I have said the same thing as you, although in different form and different language, but I do not want to pass on this question as a matter of law. I do not want to say that he is a trespasser or a volunteer, but let the jury determine whether he is or not. Mr. Thomas: I am not asking you to do that. I am asking if the jury find that he voluntarily, as a volunteer, deliberately touched this wire at a point seven feet two inches above the ground, the plaintiff cannot recover — as a volunteer. The Court: No, I shall not change my charge in that respect. Mr. Thomas: Grant me an exception.”

The deceased was five feet and ten inches in height. The jury might have found from the evidence that the cable which carried the deadly current of electricity was seven feet and two inches above the ground, and that the deceased must have reached that distance from the ground to have received the shock resulting in his death, that his act in so reaching up to the cable was voluntary and conscious, and not such an act as would naturally have been anticipated by the defendant in the ordinary use of the sidewalk or highway. In this connection we should remember that ordinary doorways are less than seven feet and two inches in height. In this view of the case I think that the defendant was entitled to have the jury instructed as requested and that the learned trial court erred in refusing to instruct the jury as requested.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Judgment and order affirmed, with costs.