As was noted by the dissenter below, "The question in each case is the character of the circumstances which require the exercise of those precautions". One very significant circumstance is the voltage charge; there is, to be sure, a correspondingly higher duty of care owed as higher voltages are transported (compare Ferrari v New York Cent. R.R. Co., 224 App. Div. 182, affd 250 N.Y. 527 [4,000 volts]; Burrows v Livingston-Niagara Power Co., 217 App. Div. 206, affd 244 N.Y. 548 [11,000 volts]; Braun, supra [2,000-3,000 volts]; Caruso v Troy Gas Co., 153 App. Div. 431, affd 209 N.Y. 510 [2,300 volts]; with Van Leet v Kilmer, 252 N.Y. 454 [110 volts]). Another circumstance, equally significant, is the proximity and accessibility of power lines to the public where the opportunity and likelihood of contact therewith is more acute (see Burrows, supra, at p 208; Braun, supra, at pp 490-491).
449; Hillerbrand v. Mercantile Co., 141 Mo. App. 132; Harris v. Elec. Light Co., 195 Mo. 628; Kribs v. Light Co., 199 S.W. (Mo. App.) 261; Williams v. Springfield Gas Elec. Co., 274 Mo. 1; Thompson v. City of Slater, 193 S.W. 971; Godfrey v. K.C. Line Co., 299 Mo. 472. (2) It is negligence to place an unattractive dangerous instrument in or near an attractive environment. In Edwards v. Kansas City, 180 Pac. (Kan.) 271; Consolidated E.L. P. Co. v. Healy, 70 Pac. (Kan.) 884; Costanza v. Pittsburg Coal Co., 119 A. 819; Caruso v. Troy Gas Co., 138 N.Y.S. 279; Union L.H. P. Co. v. Lunsford, 225 S.W. (Ky.) 741; Robertson v. Light Power Co., 176 N.Y.S. 281; Talkington v. Power Co., 165 Pac. (Wash.) 87; Beckwith v. City of Malden, 253 S.W. (Mo. App.) 17; McKiddy v. Des Moines Elec. Co., 206 N.W. 815. (3) A child has the right to play in the street and in climbing a pole is not a trespasser.
Unfortunately, it was not the primary cabinet and when he attempted to test another cabinet, this tragic accident occurred. Although the facts before the Court fail to establish a triable issue regarding a breach of a duty owed by defendant T J Electrical Corporation (a contractor that provided maintenance on the switchgear), I cannot reach a similar conclusion regarding NiMo. It has long been the law that the owner of electrical wires has a duty to exercise reasonable care (see Miner v. Long Is. Light. Co., 40 N.Y.2d 372, 379;Bennett v. New York Queens Elec. Light Power Co., 294 N.Y. 334; Caruso v. Troy Gas Co. 153 App. Div. 431, affd 209 N.Y. 510), and "a correspondingly higher duty of care [is] owed as higher voltages are transported" (Miner v. Long Is. Light. Co., supra at 379). While the primary switchgear cabinet was owned by HVCC, NiMo owned and provided the 13,200-volt line into the cabinet and, significantly, had exclusive control over whether the primary cabinet was energized.
here, the setting was a well developed area. In Olm v New York Queens Elec. Light Power Co. ( 188 App. Div. 19) the court recognized that insulation of high tension wires must be provided where it could be foreseen that persons might lawfully climb trees through which such wires were placed. Here the easement which Lilco obtained is proof that Lilco foresaw that the trimming of branches would be necessary, and there is no doubt that Miner was lawfully engaged in pursuit of that task at the time of the injury. Indeed, the presence of a high voltage line in a place where persons might reasonably be foreseen to frequent has been said in itself to impose a duty of a high degree of care on the utility (Burrows v Livingston-Niagara Power Co., 217 App. Div. 206, 208, affd 244 N.Y. 548). The test of liability, in short, is reasonable care — "a relative term varying with circumstances and surroundings" (Ferrari v New York Cent. R.R. Co., 224 App. Div. 182, 186, affd 250 N.Y. 527; see, also, Caruso v Troy Gas Co., 153 App. Div. 431, affd 209 N.Y. 510; Dutcher v Rockland Elec. Co., 123 App. Div. 765, affd 195 N.Y. 540). Hence, it is properly a jury question, just as the issue of contributory negligence of Miner was for the jury (Krastel v Long Is. Light. Co., 272 App. Div. 833; Braun v Buffalo Gen. Elec. Co., 200 N.Y. 484, 495-496, supra), whether Lilco discharged its duty of reasonable care. In this case, beyond the nature of the setting in which the injury occurred, plaintiffs produced expert testimony, properly admissible (cf. Troidle v Adirondack Power Light Corp., 225 App. Div. 444, 448, revd on other grounds 252 N.Y. 483), that Lilco should have insulated the wires.
It was error for the court, in its charge, to permit the jury to find defendant negligent in not anticipating that danger would arise from some unusual and extraordinary interference with the wires. ( Buell v. Utica Gas, etc., Co., 230 App. Div. 328; affd., 259 N.Y. 443.) Cases cited by respondent, such as Braun v. Buffalo General Electric Co. ( 200 N.Y. 484) and Caruso v. Troy Gas Co. ( 153 App. Div. 431; affd., 209 N.Y. 510), do not apply.
If the third rail projected into the highway unnecessarily it was a nuisance, and the defendant is liable for any injury occasioned thereby. ( Caruso v. Troy Gas Company, 153 App. Div. 431; 209 N.Y. 510.) The third rail terminated on the cattle guard, but there is nothing in the record to show that the cattle guard was legally in the highway.