Opinion
November 20, 1944.
Action to recover damages for wrongful death. Plaintiff's intestate was electrocuted while working for a contractor on a sewer project in Queens County as a consequence of a boom attached to the contractor's crane coming in contact with high tension wires maintained by the defendant parallel to the roadway in which the sewer job was in progress. Judgment for the plaintiff reversed on the law, with costs, and the complaint dismissed on the law, with costs. The findings of fact implicit in the jury's verdict have been considered and are affirmed. Under the undisputed facts herein the happening of this accident was not within the field of reasonable apprehension on the part of the defendant. ( Buell v. Utica Gas Electric Co., 259 N.Y. 443; Leeds v. New York Telephone Co., 178 N.Y. 118; Rowley v. Newburgh Light, Heat Power Co., 151 App. Div. 65; Morton v. Smith Hoisting Co., 166 App. Div. 436.) The case of Ward v. New York State Electric Gas Corp. ( 290 N.Y. 325) may be readily distinguished. The defendant was not obligated to anticipate that the sewer contractor's employees, under the circumstances herein, would be negligent in the manner of the operation of the crane and boom, especially after a four months' safe operation during which the apparatus was confined within the pathway concerned with the construction of the sewer, over which area the defendant's high tension wires were not maintained, although they were parallel to and outside that area. Carswell, Adel, Lewis and Aldrich, JJ., concur; Close, P.J., dissents and votes to affirm on the ground that the case presents a question of fact for the jury.