Citation Numbers: 13 Misc. 435, 34 N.Y.S. 470
Judges: Adams
Filed Date: 6/15/1895
Status: Precedential
Modified Date: 1/13/2023
The only questions argued upon this motion were those which involve the ^plaintiff’s right to maintain his' action against this defendant, the contention being that the evidence fails to establish any negligence upon the part of any one to which can be justly attributed the injury of which the plaintiff complains, but that, if any is proven, it is negligence upon the part of the Western Union Telegraph Company, or an employee of the city of Auburn, and not upon the part of the defendant.
It will be well, therefore, to consider these several propositions in the order in which they are stated, and .at the outset it may be conceded, as was suggested in the charge to the jury, that the circumstances attending the plaintiff’s injury
It is unquestionably the rule, and a very just one, that no person can be charged with a negligent omission of duty for a failure to anticipate and guard against some contingency which would not have arisen save under circumstances which are exceptional. Hubbell v. City of Yonkers, 104 N. Y. 434. The mere fact, however, that a similar accident never before happened does not necessarily repel the charge of negligence (Cleveland v. A. J. S. Co., 125 N. Y. 299), the true test being, as stated in the last case cited, whether it is one “ which might reasonably have been anticipated, or one, the occurrence of which would, in the minds of reasonable men, be in the highest degree unlikely.”
Measured by this standard, it is obvious, I think, that the case presented questions of fact which the plaintiff was entitled to have a jury pass upon, for although it may be claimed with great propriety that there was no good reason for anticipating an accident in all its details like the one in question, yet the possibility of a personal injury occurring by reason of the failure to properly adjust a glass insulator, of no inconsiderable size and weight, to its proper place upon a telephone pole can hardly be said to be so remote as to justify the claim that “ in the highest degree it is unlikely to happen.” Here was a pole ninety feet in height with twenty crossbars or arms attached to it, and upon these arms were pegs for possibly 200 insulators, and over them were stretched a vast number óf wires. This structure was located at the junction of two thoroughfares in a flourishing city, and by and around it hundreds of people were passing daily. The evidence discloses the fact that it frequently became necessary '
The claim that the fault, if any, was that of Hurlburt, and not of this defendant, was submitted to the jury, and they were instructed that, if the insulator, having been properly attached, was displaced simply because of the force which was employed by him in raising the wire of the fire-alarm telegraph, the plaintiff could under no possible circumstances recover. The issue thus raised having been submitted to the jury, their verdict must be regarded as conclusive upon the subject, and, therefore, it may be assumed that the insulator was placed upon the wooden peg in a careless and negligent manner, and so we have fairly presented for consideration the question as to the party who is responsible therefor.
The defendant sought to escape responsibility for the acci
But assuming that the telegraph company did cause the insulator to be placed upon the peg in the manner described by the plaintiffs witnesses, yet I fail to see how this relieves the defendant from all share of responsibility for the result which followed.
It is expressly admitted by the answer that the pole in question was erected and maintained by the defendant, and if it saw fit to permit some other person or corporation to use a single crossarm as a matter of convenience, it nevertheless appeared, and was not disputed, that the defendant remained in virtual possession of the entire structure and exercised a supervisory power over it, for its employees were constantly climbing the pole to readjust wires, and its superintendent testified that it was his business to inspect it, and that he knew what its condition was at the time of the accident.
It matters little, therefore, what was the precise relation existing between the defendant and the telegraph company, for if it was that of lessor and lessee, the pole being jiractically in the possession, and certainly under the control, of the former, it became charged with the ’ duty of keeping it in such a condition of safety that travelers upon the highway should be exposed to no unnecessary hazard therefrom (Khron v. Brock, 144 Mass. 516; Gray v. Boston Gas Light Co., 114 id. 149; Milford v. Holbrook, 9 Allen, 17), and there is no reason why the same rule should not apply where the
In other words, the defendant, owning, maintaining and controlling the pole, was responsible for any negligent condition of its appurtenances which it permitted to exist by its passive acquiescence, whether such acquiescence followed actual knowledge or resulted from failure to acquire knowledge. Gottlieb v. N. Y. L. E. & W. R. R. Co., 100 N. Y. 462; Goodrich v. W. Y. C. & H. R. R. R: Co., 116 id. 398; Gray v. Boston Gas Light Co., supra ; Coupland v. Hardingham, 3 Camp. 398; Anderson v. Manhattan Ry. Co., 1 Misc. Rep. 504; 21 N. Y. Supp. 1.
But it is further insisted by the defendant’s counsel that even though there was an omission to fasten the insulator securely upon the crossarm, such omission cannot be said to have been the proximate cause of the plaintiff’s injury.
It is often a difficult matter to determine with any degree of accuracy what is the “ proximate cause ” of an accident, and it frequently happens in cases of negligence that several causes concur to produce certain results, one or all of which may be denominated “ proximate.”
This is peculiarly true of the case in hand, for it is absolutely certain that the plaintiff would have escaped injury upon the day in question but for the intervention of a third party, for whose acts the defendant is in no wise responsible, so that it may be asserted with equal certitude that the raising of the fire-alarm wire by Hurlburt was a proximate cause of the consequences which followed. But, on the other hand, had the insulator been firmly attached to the peg upon which it rested, and once more, in considering the question, it must be assumed it was not, the raising of the wire probably would not have displaced it and caused its fall. It would seem, therefore, that the case comes fairly within the rule which holds that where several proximate causes contribute
The questions discussed upon this motion, as well as upon the trial, possess great interest, and are not wholly divested of embarrassing features, - but mature reflection and careful consideration, with the aid of such light as is furnished by the authorities cited, incline me to believe that the case was properly submitted to the jury, and that the verdict should not be-disturbed.
The motion is, therefore, denied, with ten dollars costs.
Motion denied, with ten dollars costs.