Western Union Telegraph Co. v. McMullen

The opinion of the court was delivered by Van Syckel, J. In June, 1893, McMullen, who was plaintiff below, was in the employment of the Western Union Telegraph Company, engaged in helping to set poles, string wires, put up cross-arms and connect wires. While in the performance of his duty and as he was about to attach a new wire, he received such a strong current of electricity from the Western Union wire that he was knocked insensible, and received most painful injuries. The writ of error in this case is prosecuted to review the judgment recovered by McMullen below in compensation for the injuries received by him. The pole upon which McMullen was working at the time he was injured was the property of the telegraph company. It appeared in the cáse that in the ordinary use of the telegraph wires the current of electricity was not sufficient to do injury to the person handling the wires. It further appeared-that in various parts of .Jersey City, and not far from where McMullen was injured, there were poles of the telegraph company to which were attached electric light wires heavily and dangerously charged with electricity, and that such electric light wires were in such close proximity to the wires of the telegraph company as to be dangerous, but no electric light wire was attached to the pole on which McMullen was injured. He had been in the employ of the company but one month and five days when he was injured, and had never worked in Jersey City before. It did not appear that the compány gave any warning to McMullen of the danger in stringing its wires by reason of their close proximity to electric light wires at other points. The trial court charged the jury that McMullen, when he entered the service of the company,' assumed the ordinary — 159 — risks incident to the employment, and he also assumed risks arising in consequence of special features of danger known to him or which he could háve discovered by the exercise of reasonable care. He left it to the jury to say whether the placing of electric light wires upon some of the polés of the company near to the telegraph wires was a special feature of danger known to McMullen, or which should have been observed by one ordinarily skilled in- the employment in which he was engaged. If the jury found in favor of McMullen upon these questions, then it was instructed to inquire whether the company had been guilty of actionable-negligence. On this part of the case, the jury was instructed that the duty imposed on the company by the contract of hiring was not to subject McMullen without his knowledge or consent to risks not assumed by him; "that an employer contracts with his employe to use reasonable care to protect him from unnecessary risks, and is responsible to the employe for damages resulting to him by reason of the want of such care. The jury was directed to charge the company with negligence if it found that McMullen was injured through some latent danger of which he ¿hould have been warned, and that the injury resulted from the fact that the electric light wires placed on the poles of the company were the proximate cause of the injury. All these instructions are in accordance with the established rule in this state. Foley v. Jersey City Electric Light Co., 25 Vroom 411; Newman v. Fowler, 8 Id. 89; Steamship Company v. Ingebregsten, 28 Id. 400. Upon each and every of the controlling questions in the case there was sufficient evidence to go to the jury, and, therefore, there is no error in law in the trial below. The judgment should be affirmed. For affirmance—The Chancellor, Chief Justice, Garrison, Gummere, Lippincott, Ludlow, Yan Syckel, Bogart, Brown, Sims, Smith, Talman. 12. For reversal—None.