Murphy v. Hudson River Telephone Co.

The appellant insists that the proof is insufficient to show in what manner the accident happened, and leaves it quite as certain that it happened because the plaintiff’s shoulder came in contact with a . • O high tension wire as because he was shocked by the use of the tape, and, therefore, that the jury, were left to speculate as to which of these' causes was responsible for the accident. The high tension ■Wires carried electric, current at a pressure of 23,000 volts according to the proof, and the appellant’s claim is based largely upon the assumption that electricity of that'pressure could not have been conveyed through the tape into the plaintiff’s body,- as it would have burned off or consumed the', wires in the tape, and', therefore, ‘ that the electricity must have come from the accidental contact of the plaintiff’s shoulder, where it Was burned, with the wire and not through the tápe. This view leaves out of the question the fact that, the tape had conducting capacity sufficient to. carry enough electricity tó shock the' plaintiff without burning out the Wires within it and Without carrying anything like the total current flowirigin the high tension wires. There is no doubtthat a considerable *453amount of electricity passed through this tape upon the occasion when the plaintiff was injured, for there was a burn upon it where he held it in his hand- and also another one a short distance below where it might have come in contact with one of the high tension wires. Phillips also at the time plaintiff was shocked received a blister where he held the other end of the tape in his hand and also • received a considerable shock which sent him back for quite a distance from where he stood, but did not knock him down. Just at the moment when Murphy fell a witness on the ground also saw a streak of fire up at the top of the pole.

There is no proof that the shock which caused plaintiff to fall was received near his shoulder, except as that may be inferred from the burn there, and the jury may have found that such burn was caused by his coming in contact with one of the lower high tension wires in falling, rather than by carelessly getting himself against one of them in making the measurement. That it was caused in. falling is fairly sustained by the evidence, for he was an experienced lineman and knew these were high tension wires and knew the danger of touching them. He also testified that he did not touch them as he was attempting to make the measurement, and Phillips swore that he did not know how the shock was received. •

It seems to me that there was evidence to make it a question for the jury as to whether or not the shock was received by the plaintiff through the tape, and the verdict of the jury to that effect is supported by sufficient evidence.

A somewhat difficult question arises on the plaintiff’s testimony that Phillips whipped or shook the tape against the high tension wire in straightening it out to take the measurement. It is claimed by the appellant that if Phillips did this' it was an act of carelessness on his part while he was not exercising superintendence, but while he was engaged with the plaintiff in a mere detail of the work, that is, in holding one end of the line to make the measurement while the plaintiff was holding the other. But the jury has found that the accident was caused by the tape coming in contact with the high tension wire. If the tape had not been negligently or improperly furnished to the plaintiff for this work, and had been the ordinary linen tape the plaintiff supposed it was, no matter how much switching or whipping of it Phillips did, the accident would not *454have happened. It was, therefore., primarily caused by the improper, tape and not by. the switching of it, or it might be claimed that each of these were causes of the injury.. If that, view be taken it would bring in the well-known rule stated in the Ring case. (Ring v. City of Cohoes, 77 N. Y. 83.) There it was held that where sev.eral proximate causes contributed to the accident an,d each is an efficient cause without, the® operation of which the accident would not have happened, it may be attributed to any of the causes, but it cannot be attributed to a cause .unless without its operation the accidént would not have happened.- If it had not been for the furnishing of the improper tape the - plaintiff would not have been injured. -Therefore, that was the negligence that caused the accident and the furnishing of it was the. act of the superintendent and not the.act of Phillips while he was engaged in adetail.of .the work.

The negligence of the appellant in furnishing this, tape is emphasized by some evidence of Phillips given upon cross-examination which clearly showed that " he. knew its dangerous character. He testified that he knew there was something in it to keep it from stretching ,• some metal .wire; that he knew what the result would be if the tape touched, a. high tension wire. .

I think there-is nothing in the case showing that the plaintiff was guilty o"f contributory negligence. He was an experienced lineman it is true, but the character of the work he was engaged in when he was injured, so far as it required him to use: the tape in question, was not such as he was accustomed to do as a lineman, and the proof is undisputed that he knew nothing of the character of the tape; -that he supposed it was an ordinary linen -tape, and the fact that it had concealed -therein copper wires was not apparent • by ordinary Observation, I a"m inclined to believe that there was enough-in the-evidence to Sustain the verdict of the-jury and think that the judgment entered "thereon should be affirmed, • ■ ■ * ’

The judgment and order should be affirmed, with costs.'

All concurred, except Smith, P. J.,.and. Sewell, J.,,dissenting.

Judgment and order affirmed, with costs.