On appeal from the Supreme Court.
For the defendant-appellant, Henry H. Fryling (William H. Speer and James J. Higgins, of counsel).
For the plaintiffs-respondents, Davis & Davis (James Mercer Davis, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. The Public Service Electric and Gas Company (hereinafter called defendant) appeals from a judgment entered upon a general verdict against it in an action to recover damages for personal injuries to the infant plaintiff Morris Robbins (hereinafter sometimes referred to as the plaintiff) and for consequential damages to his father, Clarence Robbins, as the result of the infant coming in contact with a wire charged with electricity, maintained and controlled by the defendant at the intersection of two public highways in Burlington county.
On this appeal we are not concerned with the other defendants originally named in the suit, because a voluntary nonsuit was taken at the trial as to them.
At the trial it appeared without substantial dispute that there was a collision between two automobiles at the intersection of the two highways with the result that one or both of the cars struck a pole of the defendant at a corner of the intersection, upon which pole it maintained and controlled wires carrying electricity, and a wire which extended diagonally across the intersection was torn from the cross-arm of the pole and fell to the ground in the highway. It was that wire with which the plaintiff came in contact.
Among other allegations of negligence the plaintiffs charged in effect that the defendant was negligent in that the pole was placed in a dangerous position for persons traveling upon the highway; that the electric wire upon the pole was improperly, insecurely and negligently installed and maintained; that the material by which the wire was attached to the pole was carelessly and negligently selected and inspected, and was in an unsound and dangerous condition; that the wire was without insulation and was carelessly and negligently installed diagonally across the highways, without proper guards or protection; and that the wire, heavily charged with electricity, was allowed to lie and be upon the public highway in a highly dangerous condition.
Now the defendant contends that the trial judge erred in refusing to nonsuit the plaintiffs and to direct a verdict for the defendant. These motions were grounded upon the allegations
(1) that there was no evidence of negligence upon the part of the defendant which was the proximate cause of the injury to the plaintiff; (2) that the plaintiff was guilty of contributory negligence; and (3) that the plaintiff assumed the risk.
We must, therefore, inquire whether there was evidence proper to be submitted to the jury upon these issues; if so, it was not erroneous to refuse to nonsuit or to direct a verdict.
In deciding this question we must attribute to the evidence such credibility and force as the jury might.
An examination of the evidence (which was conflicting in some essentials) shows that the jury might nevertheless find established the following facts:
On August 20th, 1935, at five-one P.M., daylight saving time, there was a collision between two automobiles at the intersection of the two highways in question, with the result that one or both of the cars struck the pole of the defendant (which was within the limits of the highway, but outside of the usual traveled portion thereof) at the southeast corner of the intersection, upon which it maintained and controlled wires carrying electricity, and a wire was torn from the crossarm of that pole, and together with the insulator to which it was attached, fell into the highway. That wire originally extended diagonally from the pole at the northwest corner of the intersection to the pole at the southeast corner. It was uninsulated and charged with two thousand four hundred volts of electricity. A bystander took hold of the insulator and dragged the wire to one side, but within the limits of the highway. It was that wire with which the infant plaintiff (eighteen years old) came in contact to his injury. The wire had been fastened to a porcelain insulator which in turn was fastened to a locust wood pin which had been driven into the cross-arm of the pole, and that pin which held the insulator was decayed, rotted and unsound, and there was no other provision to relieve the diagonal or side stress or strain upon the wire or to otherwise safeguard it. As hereinbefore stated the pole was struck at five-one P.M., daylight saving time. At five-ten P.M., the defendant was notified at its sub-station in Mount Holly (three or four miles away) through which the
electricity was furnished, that there had been an accident at the intersection in question and there was trouble with its electric line, and then having made some further investigation the informant again likewise notified the defendant at five-twenty P.M., but instead of defendant turning off the current of electricity, as it might have done, the wire in question laid upon the highway, charged with a deadly current of electricity, until about five-forty P.M. Meanwhile, the plaintiff, driving an automobile on his own business, accompanied by his mother and another, reached the scene of the automobile accident between five-twenty-seven and five-thirty P.M. Seeing that there had been a serious accident, the plaintiff stopped his car near the corner out of the way of traffic, and alighted and helped the people who were injured in the collision. He thus worked for about ten minutes when he returned to his car for the purpose of resuming his journey and as he got in front of his car at about five-thirty-eight ...