Opinion
May 29, 1912.
Alexander Cameron [ B.F. Briggs and Frederick Allis with him on the brief], for the appellant.
Ellis L. Aldrich, for the respondent.
Present — JENKS, P.J., THOMAS, CARR, WOODWARD and RICH, JJ.
The plaintiff, an infant under the age of ten years, has recovered a judgment against the defendant for the sum of $5,144.15 for damages arising from a personal injury sustained by the plaintiff through the alleged negligence of the defendant. The action was tried in Kings county in October, 1911, and the jury rendered a verdict of $5,000 in favor of the plaintiff. The case is a very exceptional one in its facts. When the accident happened, on November 13, 1907, the plaintiff was a small boy between three and four years of age. He was playing in the rear yard of a building known as No. 524 Marcy avenue, in the borough of Brooklyn, where he resided with his father. This building was situated on the corner of Marcy avenue and Floyd street, and the yard ran along Floyd street, being separated from the street by a board fence. Abutting the rear of this yard there was a one-story frame building with an entrance from Floyd street, which had been occupied previously as a florist's shop. One side of this building ran along the rear of the yard in which the plaintiff was playing. On May 27, 1903, the defendant installed a telephone in this building, and as part of the mechanism of installation it put on the outside of said building several porcelain insulators, on which the wires used for the telephone service were strung. These insulators were affixed to the side of the building by screws and projected outward from the side of the building for a few inches above the land which formed the yard of the Marcy avenue property. On November 28, 1906, the telephone service to the florist's shop was discontinued, as the contract had expired, and the defendant thereupon disconnected the wires used for telephone service, but failed to remove the insulators which had been affixed to the side of the building, leaving one of them apparently screwed to the side of the wall of the florist's shop. When it discontinued its telephone service it appeared to abandon all interest in the further existence of these insulators. On the day of the accident in question, this infant while playing in the back yard of his residence, near the wall of the former florist's shop, was struck by one of these insulators, which in some way became loose from the side of that structure and fell upon the boy's head. It happened that the plaintiff was struck by a screw attached to the insulator, and it penetrated his skull and injured some of his brain coverings. The boy screamed, and his grandmother who was near by heard the scream and ran out to him. She found him with the insulator on his head and the screw thereof stuck into the bony structure of the skull. She separated the article from the head of the boy and preserved it, and it appeared as an exhibit on the trial of this action.
The questions seriously litigated at the trial were: First, whether the insulator which caused the injury was one which had been used by the defendant for the installation of its telephone service at the place in question; second, whether there was any proof of negligence on the part of the defendant, either in the affixing of the insulator or in failing to remove it when the telephone service was disconnected. The jury found against the defendant on the first question, and, although a large number of witnesses were produced by the defendant to disown any connection between the defendant and the insulator in question, the evidence was such that the jury was entitled to find in favor of the plaintiff on this point. We think its finding of negligence against the defendant on the second point was wholly justifiable. The simple question involved was whether the abandoning of the insulators so that the defendant no longer exercised any care in regard to them by way of inspection or otherwise, was such an act of ordinary care and prudence as should exonerate the defendant from any liability for future results that might happen in the course of time. When this insulator was in use, it was presumably looked at from time to time and in that way inspected and taken care of. When it was abandoned, there was no probability of such care and inspection. There was nothing to prevent the telephone company from removing this insulator when it disconnected its telephone service. It would have been at least a matter of a minute or so. It should seem reasonably clear that it might well be anticipated that the article in question might at any time become loosened on the side of the wall and fall. Should a man of ordinary care and prudence be bound to anticipate the likelihood of such an occurrence? It seems to us that this was a question for the jury and that the jury's verdict on this point against the defendant was reasonable. The occurrence of the accident in question was of such an extraordinary character that perhaps the defendant might not be chargeable with the duty to anticipate just such a completed happening as this, but the precise character of the accident is not a matter of controlling importance, for so many strange things happen in life that if we were to be exonerated from liability for our acts because of the novelty of the result the measure of liability would be very largely restricted. What was strange was not that the insulator should fall, but that it should fall in such manner as to strike with the screw.
The damages are high, if the injury to the boy was simply temporary; but there is medical evidence, which is uncontradicted, to the effect that the boy has developed, as a result of this injury, epileptic trouble, which perhaps he may outgrow but which is very likely to bother him for the rest or a large part of his days.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.