Opinion
November 10, 1939.
Present — Sears, P.J., Crosby, Lewis, Cunningham and Taylor, JJ.
Judgment and order affirmed, with costs. Memorandum: The jury evidently determined that the accident was due to plaintiff's automobile becoming entangled with a telephone wire which was owned, maintained and controlled by defendant and which had broken and fallen across the highway. The evidence supports such a finding. Plaintiff, therefore, made out a prima facie case of negligent construction or maintenance, by defendant, of its wires. ( O'Leary v. Glens Falls Gas El. L. Co., 107 App. Div. 505, 509; Griffen v. Manice, 166 N.Y. 188, 195; Weiss v. Brooklyn Edison Co., Inc., 252 App. Div. 746; Stearns v. Postal Telegraph-Cable Co., Inc., 224 id. 775.) To explain the accident, defendant introduced the testimony of its employee that the wire appeared to have been cut. To meet this testimony, plaintiff offered evidence tending to prove that a broken wire would have the same appearance. Whether the wire was severed by cutting or breaking was a jury question. ( Volkmar v. Manhattan R. Co., 134 N.Y. 418, 422; Piwowarski v. Cornwell, 273 id. 226.) All concur. (The judgment is for plaintiff in a negligence action. The order denies a motion for a new trial.)