Opinion
January 19, 1917.
A.T. Clearwater, for the appellant.
Howard Chipp, for the respondent.
Present — JENKS, P.J., THOMAS, STAPLETON, RICH and PUTNAM, JJ.
The trial court submitted to the jury the question whether Bishop's death at this arc lamp was due to electric shock, also if defendant had taken sufficient precautions in securing the wires to the crossarm at the corner of Elmendorf street and Ten Broeck avenue. The jury's finding for plaintiff was well sustained in view of the obvious risks of carrying primary and secondary electric wires thus held by wooden pins in the same crossarm without any protecting guard. This crossarm was fifteen feet lower than that across Elmendorf street, making an angular rise, which subjected the insulators on this crossarm to an upward strain. In such conditions there was a proved usage to secure the pin by nails, galvanized instead of common iron, also to protect against contact by an encircling metal loop as a guard if the pin should lift out. After this crossed wire was found they replaced the pin, but it had to be tied down to the crossarm. The finding of negligence as the proximate cause of Bishop's death cannot, therefore, be pronounced to have been against the greater weight of the evidence. ( Schoonmaker v. Pittsburgh Contracting Co., 176 App. Div. 48.) The questions of contributory negligence in not using a stepladder and the omission of rubber gloves, also in not turning off the switch above this lamp, not being so evident as to become a question of law, were for the jury. They were submitted in a charge free from exception. The jury's finding negativing such neglects on the part of deceased has support in the circumstances and accords with the rules declared in Larkin v. New York Telephone Co. ( 220 N.Y. 27, revg. 169 App. Div. 162, which followed sub nom. Larkin v. Queensborough Gas Electric Light Co., 158 id. 414). The exceptions to the court's rulings on matters of evidence present no reversible error.
The judgment and the order, so far as appealed from, are, therefore, affirmed, with costs.
Judgment and order, so far as appealed from, unanimously affirmed, with costs.