Eva Hebert, by George A. Rice, Her Guardian Ad Litem, Appellant, v. The Hudson River Electric Company, Respondent

Eva Hebert, by George A. Rice, Her Guardian Ad Litem, Appellant, v. The Hudson River Electric Company, Respondent. Third Department, December 30, 1909. Gas and electricity — negligence — injury by shock from high tension wire — use of defective wire owned by other persons —res ipsa loquitur — infant — contributory negligence. An electric power company may be held liable for using a defective cable to transmit powerful charges of electricity to another company, although it did not own the cable. The negligence consists in the use of such defective cable or in failing to discover its unsafe condition by inspection. Where a wire transmitting a dangerous charge of electricity breaks and falls; upon private lands causing injury to one living thereon, and the defective condition of' the wire is shown, the doctrine of res ipsa loquitur applies, casting upon the electric company the ■ burden of rebutting the presumption of negligence. A child eight years of age is presumed to be non sui juris, and the question of her contributory negligence is for the jury. Appeal by the plaintiff, Eva Hebert, by George A. Rice, her guardian ad litem, from, a judgment of the Supreme Court-in favor of the defendant, entered in the office of the clerk of the county of Saratoga, on the 27th day of May, 1909, upon the dismissal of the complaint by direction of. the court at the close of' the plaintiff’s case on a' trial at the Saratoga Trial Term. The jdaintiff was injured by coming in contact with a live electric light wire which had broken and fallen in the yard in front of the house where she lived with her father in Mechanicville. She was at the time of thé injury a little girl about eight years old. The defendant at the time of the accident and for some time .prior thereto had been furnishing electric power to the Half Moon-Light, Heat and Power Company of Mechanicville over the wire in question and had been receiving pay therefor. The wire was erected twenty-five and one-half feet above the ground and was practically over and parallel with the street line, although at the southerly corner of the lot occupied by the plaintiff’s father it was directly over such lot and about two feet outside the street line and at the northerly corner of the lot, which was one hundred and twenty-five feet wide, it' was twelve and one-half inches inside the street line. At the point in front of the house on such lot where plaintiff lived it was only a few inches outside the street line and over the lot. When it fell it rested on the ground on the lot about two feet from the street line and six feet from the front steps leading to such house. It was charged with 2,300 volts of electricity, and the accident ’ to the plaintiff happened about two and one-half hours after the wire fell. The court on. the trial granted a nonsuit on the ground that no negligence had been shown, and that if the wire was a nuisance or trespass no one but the owner of tlie lot could maintain an action for injuries occasioned thereby. George R. Salisbury and Walter JR. Cogan, for the appellant. Thomas J. Keenan and J. Ward Russell, for the respondent. [MAJORITY — Chester, J.:] Chester, J.: The complaint was framed with allegations appropriate to constitute a cause of action for either negligence, nuisance or trespass'. We need not consider whether the facts proven were sufficient to justify the submission of the caseto the jury under the allegations respecting nuisance or trespass, for the reason that enough was shown to require the submission of the question of the defendant’s negligence to the jury. It appeared that the defendant was delivering electrical energy over the wire in question to the Half Moon Light, Heat and Power Company at its power station in Mechanic-ville, so that company in turn could supply its customers with electricity for light, heat and power purposes. The place where the wire broke and-the.accident happened Was at a point on the line before the electrical energy had been delivered by the de endant to the Half Moon Light, Heat and Power Company. The proof was that that company did not own the wire or the poles on which it was strung. The electrician who repaired the broken wire testified that it ran to the Half Moon Light, Heat and Power Company at one end and at the other to a building on the Hudson river, south of Mechanic-ville; that the sign on the building at that time was “ Hudson River Electric Company; ” that the building was a power house and the only business done there was furnishing electricity. This proof tended to show that the defendant had some connection with the wire even if it did not own or Control it. It is clear that it was making use of it in transmitting a powerful and dangerous current of electricity over it and even if it did not in fact own it, still it was not free from fault and it might properly be held liable for injuries arising by sending such a current through a defective, improperly insulated or broken wire and that its negligence consisted in making use of such a wire for that purpose or in not knowing, by reason of its failure to properly inspect, that it was in an improper and unsafe condition for such transmission. In a casé like this the doctrine of res ipsa loquitur applies and after the plaintiff had furnished proof showing the defective and broken condition of the wire and that the defendant was making use of it in its business and had supplied the electrical energy which caused the plaintiff’s injuries and showing the circumstances under which the accident happened, the burden rested upon the defendant to rebut the presumption of negligence arising from the happening of the accident itself. (O'Leary v. Glens Falls Gas & Electric Light Co., 107 App. Div. 505; Smith v. Brooklyn Heights R. R. Co., 82 id. 532; Wolpers v. N. Y. & Queens El. Light Co., 91 id. 424.) Although the cases cited related to wires erected in the street, I see no reason why they should not apply to a wire erected as near the street as was this one, and which was as liable to fall in the street if broken, as it was to fall outside of it. For these reasons, the court should not have said as a matter .of law that there was no liability resting upon thé defendant, and should have submitted the question of defendant’s negligence to the jury; . The plaintiff being a child of the age of eight years was presumed to be non sui juris, and the question of her contributory negligence was also for the jury. (McGovern v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 417; Zwack v. N. Y., L. E. & W. R. R. Co., 160 id. 362; Gerber v. Boorstein, 113 App. Div. 808.) The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except Sewell, J., not .voting; Judgment reversed on law and facts and new trial granted, with ■costs to appellant to abide event.