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Ennis v. Gray.

the use of premises belonging to the party sought to be charged and that caused the injury to persons to whom was owing no obligation either of contract, duty or service, and were controlled by the well settled law that "a man may, upon his own lands, build factories and dams and employ the use of machinery, without liability for any damage which may accidentally and unavoidably ensue."

Without quarreling with the rule invoked by the appellant or the cases cited by him, we think the facts here presented sufficiently show the distinction. The defendant was engaged in the business of supplying electricity for lighting purposes in houses and streets of the city, and considering the high voltage which it was necessary to carry over the wires, thus rendering the business in the highest degree dangerous unless handled with care and skill, we think that outside of any contractual relation a duty was created on the part of the defendant, not only towards the public generally who in the streets might be likely to come in contact with the wires, but also with respect to any individual engaged in a lawful occupation in a place where he was entitled as of right to be. The rela. tion and obligation of parties are accurately expressed in Heaven v. Pender (L. R., 11 Q. B. Div. 503), the substance of which is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary prudence would recognize that, if he did not use ordinary care and skill in his own conduct with regard to these circumstances, he might cause injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. Here the defendant was engaged in placing wires in the streets and making connections with houses intended for occupancy, and as its business was of a character highly dangerous and likely to result in injury to others unless it was conducted with care and prudence, the duty was created in the conduct and management of such business of using the neces

Ennis v. Gray.

sary care and prudence to prevent such injury. That the defendant did not perform this duty the plaintiff presented evidence tending to show, and the court, therefore, properly denied the motion to dismiss the complaint at the end of plaintiff's case.

It is claimed, however, that in view of the testimony given by the defendant the motion for a new trial should have been granted upon the ground that the verdict was against the weight of evidence. We have examined the record, and while it is true the witnesses for the defendant outnumbered those for the plaintiff, we do not think the weight of evidence so clearly preponderate in defendant's favor that the court would have been justified in granting the motion for a new trial. If anything, the plaintiff's case was strengthened by the showing that a change was made in the manner of construction between the time of the accident and the trial; and upon cross-examination of defendant's expert as to the relative safety of the two modes of construction, such evidence tended to show that the present construction is safer than that which existed at the time of the accident. We think, therefore, that the question as to whether the defendant exercised ordinary care in the construction and maintenance of the electrical converter and its appliances was, under proper instructions, to which no exceptions were taken, properly submitted as a question of fact to the jury.

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A further question is presented, considering the nature of the accident, whether merely from its happening a presumption of negligence did not arise. As said in Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 300: There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as in the ordinary course of business does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose

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And as said in Millie v.

from want of care on its part. Manhattan Ry. Co., 5 Misc. Rep. 301: "Since every man is presumed to discharge his duty, it results that whoever asserts negligence of another must prove the fact, and must prove it by a preponderance of evidence.

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But there are cases in which the maxim res ipsa loquitur appliesthat is to say, in which the very occurrence itself imports negligence. The specific question here is whether the occurrence in controversy carries with it an imputation of negligence against the defendant with the effect of imposing upon the defendant the burden of repelling this prima facie presumption of negligence." So here we might ask whether the happening of this accident does not carry with it an imputation of negligence, it being self-evident that if the wires had been properly insulated it would not have occurred, and it being equally clear that with the exercise of ordinary care defective insulation could be avoided. is unnecessary for us, however, to decide that the rule of res ipsa loquitur applies-and we do not, therefore, put our decision on this ground-because, as we have already pointed out, the plaintiff assumed the burden of establishing the negligence of the defendant, and in that connection presented evidence from which the jury properly could infer that the position and manner of construction of the wiring and electrical converter were improper, and that in five places the wire was imperfectly insulated and bore evidence of having been in that condition for some time. If, therefore, we apply the rule most favorable to the defendant, that, "in order that liability shall attach for an injury occasioned by something not inherently dangerous and defective, which is found upon the grounds of or in use by one who is under a qualified obligation to the injured person, it must be shown that the defendant either knew, or that by the exercise of such reasonable skill, vigilance and sagacity as are ordinarily possessed and employed by persons experienced in the particular business

McMullan v. Illuminating Co.

to which the thing pertains, he should have known of its defective and dangerous condition, and that the natural and probable consequence of its use would be to produce injury to some one,' then, under this rule, we think, a case was made out for the jury.

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The only other ground relied upon by the defendant is, that the plaintiff, by his own negligence, contributed to the injury. The question having been submitted to the jury under proper instructions, and there being ample evidence to sustain their finding thereupon in plaintiff's favor, we should not interfere with the verdict reached.

The judgment should be affirmed, with costs.
VAN BRUNT, P. J., and PARKER, J., concurred.
Judgment affirmed, with costs.

NOTE. See note to next case.

PATRICK MCMULLAN, Respondent, v. THE EDISON ELECTRIC ILLUMINATING COMPANY, OF BROOKLYN, Appellant.

City Court of Brooklyn, General Term, June, 1895.

(13 Misc. 392.)

INJURY BY ELECTRIC WIRE.

The exception to the general rule which permits a third party to recover for injuries caused by the breach of a contract between two contracting parties is confined to cases where the inevitable or natural result of the act of the person complained of is death or great bodily harm to some

one.

Therefore, held, that one who sustained injury by taking hold of two unprotected ends of electric light wire, thus forming a short circuit, could not recover for the resulting injury from the owner of the wire, between whom and the plaintiff there was no privity of contract.

APPEAL from judgment entered upon a verdict, and from order denying motion for new trial.

McMullan v. Illuminating Co.

Frank Harvey Field, for appellant.

F. R. Hartmann (J. Stewart Ross, of counsel), for respondent.

VAN WYCK, J.: This is an appeal from a judgment in favor of plaintiff and an order refusing a new trial. McLoughlin's Washington street house had been lighted by defendant prior to the time hereinafter mentioned. The electric service wires, in a pipe, passed through the cellar wall about eight feet above the floor, where they, when in use, were in the usual way connected with the light distributing wire system of the house. In the summer of 1893 this house was undergoing repairs, including, among other things, plumbing and rewiring. Before the work of repair was commenced, defendant's servant disconnected the service wires from the house distributing wires. Plaintiff contends that defendant failed to tape or insulate the ends of the service wires, which is denied by defendant. After carefully examining the testimony on this point, we are inclined to think that the welght of evidence is with the defendant, but we will assume it to be the other way, for the purpose of considering the rules of law invoked by the respective parties under such assumption. McLoughlin had contracted with one Donovan to do the plumbing work involved in the repairs, and this plaintiff was his helper and employe; so there was no privity of contract between plaintiff and defendant. This confronts us with the question of "the right of a third party to maintain an action for injuries resulting from a breach of contract between two contracting parties." The general rule, which denies such right, is so well established as to require no citation of authorities; but it is affirmed that this case comes within an exception to such general rule which is equally well established in this State by Thomas v. Winchester, 6 N. Y. 397; Coughtry v. Globe Woolen.

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