On appeal from the Supreme Court.
For the plaintiff-respondent, O'Brien, Brett & O'Brien (Thomas J. Brett, of counsel).
For the defendant-appellant Monmouth Lumber Company, George F. Lahey, Jr.
For the defendant-appellant Public Service Electric and Gas Company, Carl T. Freggens.
The opinion of the court was delivered by
WACHENFELD, J. This action was instituted to recover damages for the death of Harry Beck, killed upon contact with electric wires of the Public Service Electric and Gas Company, hereinafter called "power company," while repairing a crane of the Monmouth Lumber Company, hereinafter called "lumber company." The appeal is taken by both defendants from a judgment of $35,000 entered against them.
The lumber company owns a tract of land 100 feet wide and 400 feet long in open country where it operates a hopper for the mixing of concrete. A mobile crane with a 65-foot boom was generally operated between the hopper and the railroad tracks on the right side of the property to unload freight cars but was also used to raise lumber and machinery. A long conveyor was constructed to the tracks to feed the hopper. A road enters the property from a nearby highway and runs between the other side of the hopper and the left property line. Two 35-foot poles carry telephone wires to the left side of the property and thence to a small shed next to the hopper.
In the latter part of October, 1945, the lumber company applied to the power company for power to operate two 220-volt electric motors and the power company erected one 45-foot
pole on the property, and using the two telephone poles, strung uninsulated wires carrying 4,150 volts, which voltage was to furnish current for the motors. The wires were strung approximately 29 feet to 33 feet above the ground, the lowest point being 26 feet at a sag between the last telephone pole and the pole erected by the power company on the property.
Before and during erection of the power lines the distribution inspector of the power company inspected the property several times to plan the installation, at which times the crane was on the property. The district superintendent of the power company inspected the property after installation and admittedly saw the crane.
Thereafter the lumber company contracted through its plant manager with Behrend to repair the crane's brake system on Saturday and Sunday, November 3d and 4th, 1945, on which days the lumber company did not operate. Behrend and Beck, experts on cranes, were partners in the business. To assist in the repairs the lumber company moved the crane to the road leading to the hopper, with the doom down about six feet from the ground and 20 feet to the nearest overhead wire.
After the repairs were completed Behrend, Beck and an assistant decided to test the crane by lifting a one-ton bucket attachment lying 25 feet away on the other side of the wires. There was testimony indicating they did not know that the wires were uninsulated and carried high voltage, and there is no dispute that they were not warned to this effect verbally or otherwise by any agent or representative of either of the defendant companies although some of them were fully cognizant of the actual situation that existed.
The repairmen talked over the necessity of "watching out for the wires" but this apparently had reference to their desire not to knock them down. The length of the boom made it impossible to maneuver it under the wires without striking either the pole or the conveyor and the crane could not be easily moved since the caterpillars were defective and additional motion might cause further damage. The crane was locked six feet above the wires and the slack of 20 to 25 feet of cable pulled to the ground. Beck and the assistant,
intending to attach the slack cable to the bucket, walked under the overhead wires, when they suddenly fell. The cable had come into contact with the overhead wires and Beck was instantly killed by the electric current.
Electrical experts testified open wire pole lines were widely used all over the country but admitted that where it was probable persons might come into contact with the wires they should be insulated or carried underground. The trial court allowed an expert witness for the respondent to testify that from good and safe engineering practice a dangerous situation is created where a crane with a boom rises ten feet above charged, uninsulated wires and that the hazard so created should be reduced by insulating the wires or eliminated by placing them underground.
Motions for nonsuit and directed verdict were made upon the ground that there was no proof of negligence on the part of either appellant; that their negligence, if any, was not the proximate cause of Beck's death; and that the evidence conclusively established contributory negligence and assumption of risk as a matter of law upon the decedent. The denial of these motions is the subject of this appeal.
The appellants also argue that the trial court erred in admitting respondent's expert testimony and also in several of its charges to the jury and in its ...