Carlock v. Westchester Lighting Co.

William F. Carlock, a member of the New York city fire department, responded with his company to an alarm of fire at a building under construction at Two Hundred and Thirteenth street and White Plains avenue. There was no sign of fire at the building when the firemen arrived. Carlock, carrying a fire hose, scaled the ladder to a scaffolding on the unfinished side of the building and, as he stepped upon the platform, his foot came in contact with live wires which electrocuted him.

Some years before, the defendant Westchester Lighting Company had erected poles to support its high tension wires on this corner. At that time the lot on which the building was being constructed was vacant and the wires were suspended only thirty feet above the ground. They were so hung that when building construction was commenced they crossed over the private property inside of the building line. After the brick men had been working on the building three or four weeks, the wall approached within three or four feet of the high tension wires and one of the building employees raised the wires to about eight feet above the scaffolding, by means of a wooden strut, so that the bricklayers could proceed without coming in contact with them A rain storm occurring during the evening soaked the wooden strut, the wires short circuited and fell to the scaffold. It was on these wires that Carlock stepped. The wires were originally insulated with a covering known as "waterproofing insulation." There is testimony that the wires were frayed. Plaintiff duly offered in evidence section 301, subdivision b, of article 3 of chapter 9 of the New York City Code of Ordinances, reading as follows:

"§ 301. Line wires.

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"b. Line wires shall be at least eight feet from the nearest point of buildings over which they pass, and if attached to roofs the roof structures shall be substantially constructed. Wherever feasible, wires crossing over building shall be supported on structures which are independent of the buildings." (New York Code of Ordinances, ch. 9, art. 3, § 301, subd. b.)

This ordinance was first admitted in evidence. Later it was stricken out and thereafter reinstated. Finally, the jury was directed to disregard the ordinance, because "the evidence does not disclose any causal connection between the claimed violation of the ordinance, * * * and the happening of the accident. I say that you may not find negligence on the part of the defendant by reason of any violation of the ``eight foot over the roof' ordinance. That did not cause or contribute to the happening of this accident." Thus the court took this issue away from the jury and ruled upon it as a matter of law.

Three specific questions were submitted to the jury, the first being: "Was the defendant guilty of negligence in the maintenance of its high tension wires, which was the or a proximate cause of the injury and death to Mr. Carlock?" The jury answered this question in the negative and was then directed to return a verdict in favor of the defendant. The judgment entered thereon has been affirmed by the Appellate Division.

The exclusion of the ordinance from the consideration of the jury constituted error. It is a well-settled rule in this State that where an ordinance for the protection or benefit of individuals prohibits the doing of acts or imposes a specific duty, the neglect to obey the prohibition or to perform the duty is some evidence of negligence to be considered by a jury in an action brought by one for whose protection the statute was enacted to recover for any injuries of the character which it was designed to prevent, proximately produced by such disobedience or neglect. (Newhall v. McCann, 267 N.Y. 394; Racine v.Morris, 201 N.Y. 240; Massoth v. Delaware Hudson CanalCo., 64 N.Y. 524.) (See Knupfle v. Knickerbocker Ice Co.,84 N.Y. 488; Schumer v. Caplin, 241 N.Y. 346, 351.) The ordinance involved herein was promulgated by competent authority as a necessary protective measure against the death-dealing potentialities of high tension wires. The failure of the defendant to comply with the ordinance might well have been found by the jury to have been a proximate cause of Carlock's death. The raising of the wires by the workman and the rain storm causing the wires to fall and to short circuit intervened between the death and the violation of the ordinance. None the less the violation would seem to have been a proximate cause of the death or so the jury might have found. Several acts may occur to produce a result, one or more being the proximate cause. (Ring v. City of Cohoes, 77 N.Y. 83; Ivory v. Town of Deerpark,116 N.Y. 476.) When varying inferences are present, a jury question is raised. (O'Neill v. City of Port Jervis, 253 N.Y. 423. )

The live wires, contrary to the ordinance, had not been kept at least eight feet from the nearest point of the building. If they had been so placed there would have been no need for the workman to have raised the wires in order that the bricklayers might work in safety. If the wires had not been raised on the wooden strut, the rain storm might not have caused them to fall and short circuit. Though the rain storm may have been the "immediate cause" of the death, it would be well within the province of a jury to find that the violation of the ordinance was a proximate cause. The failure to comply with the ordinance made necessary the act of the workman; his act created a situation whereby the natural phenomenon of rain could cause a short circuit. These intervening acts were not of such nature as to break the chain of causation. Where harmful consequences are brought about by intervening and independent forces, the operation of which might have been reasonably foreseen, there is no break in the chain of causation of such character as to relieve the actor from liability. This is so even though they are deliberate and independent, but innocent, acts of a human being. As Judge ANDREWS, speaking for the court, said in Donnelly v. Piercy Contracting Co. (222 N.Y. 210, at p. 213): "In the case before us the question is whether the act of the defendant gave rise to the stream of events which culminated in the accident."

The defendant urges that the ordinance is not applicable; that being in derogation of the common law, it should be construed as applying only to buildings already constructed. Obviously this is too narrow a construction, in view of the protective nature of the legislation and its applicability to a municipality in which new buildings are constantly being erected.

In Braun v. Buffalo General Electric Co. (200 N.Y. 484) an electric light company, under written permission, had strung two electric wires diagonally across a vacant lot suitable for the erection of a dwelling. While engaged in working upon the second story of a house which was being erected on the lot, a carpenter came in contact with the wires and received an electric shock from which he died. In reversing a dismissal of the complaint by the trial court, this court found that it was a question for the jury whether the company, in the exercise of reasonable care and foresight, should not have apprehended that the lot over which the wires were strung might be so used as to bring people in contact with them. So here, it might be found that the defendant in the exercise of reasonable care and foresight as a prudent lighting company, supplying electricity to all the buildings in this neighborhood, should have anticipated that a building might be erected upon this corner lot which was suitable for a building of any description or height. In the same way is answered the contention of the defendant that the plaintiff did not prove direct notice to the lighting company that this building was in the course of erection. Of course, the defendant knew that these high tension wires were within the building line and were only about thirty feet above the ground, so that they would be well within the reach of any building to be erected upon the property. Sufficient time elapsed between the commencement of building operations and the time that the wall came within the eight-foot limit to make the question of constructive notice one for the jury. Where an owner of realty permits a condition out of which an accident may arise to exist on his premises for as many days as it took weeks for this building to reach within eight feet of these wires, the issue of constructive notice is submitted to the jury; nor does it matter that the condition may have been caused by the intentional act of a tenant, which was not within the realm of the reasonably foreseeable. As against the evidence sustaining the submission to the jury of the issue of constructive notice, the lighting company did not offer any evidence of lack of knowledge that a building was being erected. The errors of the court were serious and vital, and unquestionably affected the result of the trial.

It follows that the judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to the appellant to abide the event.