Kremer v. New York Edison Co.

Miller, J.: I think there was sufficient evidence to warrant the submission to the jury of the question as to whether automatic current breakers, suitable to be used in connection with machines similar to the one involved here, were in general use, and if so, whether the defendant was negligent in not so equipping this machine. Two witnesses for the plaintiff testified that such an appliance was in general use ; one of these, however, derived his knowledge solely from reading, and the other bn cross-examination testified that he had actual knowledge of only one plant using as high a voltage as 6,600 where such appliance was used, but he knew of several where over 5,000 voltage was employed. Three experts were called by the defendant, the effect of whose evidence was that such appliances were in practical operation where the voltage did not exceed 2,000, but were in an experimental state so far as being adjusted to a current of higher potential than 2,000 volts. Their evidence also was that the working capacity of the machine in question was from 300 to 350 volts on the alternating side, and 240 volts on the direct current side. The evidence of the plaintiff’s witnesses was to the effect that this accident could not have happened had the machine been equipped with a breaker adjusted to work automatically, or with a fuse on the direct current side, and it may be said that the plaintiff’s theory that the excess current entered the machine from the “ D. O.” side is supported by the evidence of the defendant’s own witnesses to the effect that a current of 6,000 voltage would instantly have blown out the fuse on the alternating side, which was found to be intact after the accident. [435] The plaintiff and Brinkman, whose act in turning the wrong switch produced the condition resulting in the accident, were engaged at different stations in separate and distinct employment in which the plaintiff had neither the means nor the opportunity of knowing either the character of the work performed by Brinkman or his competency to do it. Conceding, for the purpose of the argument, that Brinkman’s act was culpably negligent, and assuming, without deciding, that notwithstanding the peculiar circumstances of this case he was so far the fellow-servant of the plaintiff as that the defendant was not bound to anticipate or guard against the consequences of his negligence, this judgment may nevertheless be supported. Of course, except that furnished by the occurrence itself, there is no direct evidence of any cause likely to produce an overcharge of current in this machine, which, consistent with the above assumption, the master was required to anticipate and guard against. But it is conceded not only that devices and circuit breakers, not automatic, were in general use, but that they were used by this defendant to break the circuit when the current reached a potential higher than the point of safety; it may fairly he inferred from the evidence of experts of both parties that such devices were necessary to insure any degree of safety in the generation and use of these extremely dangerous electric currents, and the evidence warranted the jury in finding that the defendant, in the exercise of reasonable care, should have anticipated that a dangerous overcharge of current in this machine was likely to occur from a variety of causes other than the negligence of plaintiff’s fellow-servants. The plaintiff complains because the device used was not suitable, and because, in fact, it was not used at all on the side of the machine from which the current causing the accident entered, and the suggestion of the defendant that there was no proof that it was practical or necessary to have a breaker on the direct current side is met by the testimony of its own witness to the effect that the breakers installed at the Duane street plant were in fact direct current circuit breakers. If the defendant should have apprehended and guarded against the occurrence from any cause, its failure to do so constituted negligence, and a recovery cannot be defeated bj? the fact that in the particular case the overcharging, which it was bound to guard against, was produced by a cause which it was not bound to [436] anticipate, to wit, the negligence of plaintiff’s fellow-servant; its negligence consisted in not having furnished a reasonably safe appliance, and the fact that in the particular case the negligence of the coservant concurred to produce the injury does not deprive the plaintiff of his remedy for the defendant’s wrong, as the “ negligence of a servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed his duty.” (Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557, and cases cited.) But it is said that the negligent act of Brinkman in turning in the wrong switch, and not the failure to supply an automatic current breaker, was the proximate cause of the accident. This conclusion is based on the reasoning in cases where the question determined was whether some independent agency had intervened to break the causal connection between the cause alleged and the result. The defendant had a series of generating plants, so connected that currents of 6,600 voltage could be transferred from one station to another, as the demand upon the different stations varied. The plaintiff, having no duty to perform except to oil the engines at the Duane street station, a fellow-servant of Brinkman employed at the One Hundred and Twenty-first street station only in the sense that he was employed by the same master, unconscious of danger and with no means of warning, received the grievous injury complained of, because, as the jury have said, the master failed to provide reasonably safe machinery at the place where the injury was received. But because the current causing the injury was set in motion by the act of a fellow-servant employed as remotely from the plaintiff in practical effect as though separated by the maximum distance possible for electricity to travel, it is urged that the negligence of the fellow-servant, and not that of the master, was the proximate cause of the injury. The same reasoning would prevent a recovery in every case of failure on the part of a master to discharge his duty in the adoption of safety appliances designed only as preventives. Of course the absence, of the circuit breaker could not in a literal sense be said to have been the cause of this accident; its presence, however, would have prevented it,' and its absence, being a breach of duty on the 'part of the master, was a juridical cause. The- negligence of the master was continuous, and harmless [437] until a dangerous condition was produced, but the cause producing such condition, instead of intervening to break the causal connection between such negligence and its effect, merely concurred with it to produce the effect. (Coppins v. N. Y. C. & H. R. R. R. Co., supra; Stringham v. Stewart, 100 N. Y. 522; Cone v. D., L. & W. R. R. Co., 81 id. 206; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 551; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657; Quill v. Empire State Tel. & Tel. Co., 92 Hun, 539, 546.) I do not think that the defendant can complain of the charge. For reasons already stated, it was not error to submit to the jury the question whether there was a fuse on the direct current side of the machine; and the other portion of the charge challenged in this court does not present ground for reversal. The court did not submit the question of Brinkman’s negligence to the jury, but clearly pointed out that the plaintiff’s right to recover depended solely on the question as to whether the defendant should have apprehended such a condition as resulted, and guarded against it. What the court said as to Brinkman was only illustrative of the question which the court was discussing, viz., whether in the exercise of reasonable prudence the defendant should have anticipated that an overcharge of current might enter this machine. It is apparent, that the verdict was not made to depend in the slightest upon the character of Brinkman’s act. The court distinctly charged that, the defendant was not bound to anticipate or guard against the possibility that any fellow-servant would negligently turn the wrong-switch. The effect of the whole charge was that if the defendant,, in the exercise of reasonable care, should have apprehended that, from some cause, not the result of negligence of the plaintiff’s, fellow-servants, an overcharge of current was likely to enter this machine, and failed to use reasonable care to guard against it, the plaintiff could recover, irrespective of what did in fact produce the overcharging. It is true that in the colloquy with counsel, after-several requests had been made and passed upon, the court said: “ I proceeded on the assumption that this man handled the switch with due care, but in a moment of forgetfulness made a mistake.” This remark was not addressed to the jury; no exception was taken to it, and I do not think the jury could have been misled by it. It is difficult to understand how a jury could have been confused by a [438] charge remarkable for its clearness and simplicity, or how they could have been led to think that the defendant was liable for the act of Brinkman, when in plain and concise language their attention was directed to the sole question upon which the defendant’s liability depended. The verdict is a large one. But, considering the age of the plaintiff, his earning capacity at the time of the accident, the different operations which he had to undergo, with the attendant pain and suffering, and the grievous character of the injury, which the defendant did not attempt to controvert, we cannot, without invading the province of the jury, say that it was excessive. These conclusions lead me to vote for affirmance of the judgment and order appealed from. Hibsohberg-, P. J., and Rich, J., concurred; Woodward, J., read for reversal, with whom Jenks, J., concurred.