Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff, Ida Buccafusco, widow and administratrix ad prosequendum of the estate of Joseph J. Buccafusco, deceased, appeals in this death action from a judgment for defendant, upon a jury verdict of no cause for action. The asserted trial errors are concerned essentially with the charge of the court.
The action arose from the death of Joseph J. Buccafusco by electrocution when he came in contact with a 2400-volt power line belonging to the defendant. The wire, strung overhead on poles located along the street, had become dissevered during the wind and rain of hurricane "Carol," and was hanging loose from a tree about six feet above the street. The accident occurred on August 31, 1954 at 10:45 A.M. at the northwest corner of Concord Street and St. Paul's Avenue, in Jersey City.
The plaintiff's theory of negligence is based in her complaint in two counts and is embodied in the pretrial order. The first count alleges that decedent was killed by electricity from one of defendant's electric wires which had become loosened and fallen to the street. In the second count plaintiff alleges negligent construction and maintenance of the defendant's wires as the cause of decedent's death, particularizing
that: the wires were improperly strung so as to pass through a tree and touch its branches; the insulation was worn and broken from friction with the branches of the tree; defendant knew or should have known by inspection that the wires were in improper condition; and it knew one hour before the accident that the wire had broken and fallen, but failed to remove the live wire from the public highway.
Defendant admitted ownership of the power line, but denied the charge of negligent construction and maintenance, alleging that at the height of hurricane "Carol," when it was "windy and raining," its wires were knocked down by a television antenna which fell upon them, causing the wires to burn and break. As separate defenses the defendant affirmatively asserts the decedent's contributory negligence, assumption of risk -- both based upon the claim that decedent deliberately "jumped and reached for the wire and was electrocuted," although he had been warned not to do so; act of God; unavoidable accident, and the intervening negligence of a third party (the owner of the television antenna) over whom it had no control.
It is appropriate to summarize briefly some of the testimony. On behalf of the plaintiff there was testimony by Mrs. Hickey and her mother, both of whom observed the occurrence of the accident from the window of Mrs. Hickey's apartment on the opposite corner. They said that decedent was crossing the street going to his home. As he passed under a tree he did not jump but "raised his hand as if to protect himself and his hand shot up and he fell back down in the street backward." Mrs. Hickey said decedent "must have seen the wire" but she did not know whether or not his hand came in contact with it. She said the wire was "hanging very low from the branch" and she did not see any antenna in or near the tree at the time. Mrs. Hickey's testimony was impeached by her prior statement given to one of defendant's investigators in which statement, it was testified, she said that decedent walked over to the wire, looked up at it, and stretched up or jumped slightly in trying to reach it.
Her mother, Mrs. Cannito, testified that while she witnessed the electrocution, she did not see decedent jump off the ground or touch the wire nor did she see any television antenna where the accident took place.
Mr. Lucas testified that the wire ran through the tree and was swinging back and forth over the sidewalk and gutter. He could not recall seeing decedent jump or raise his hand for the wire, but he did strike the wire with his hand because decedent had it in his hand when he was electrocuted. He could not say that decedent "intentionally grabbed" the wire. However, his testimony was impeached by a prior statement given to defendant's investigator that decedent, after being told to "keep clear," then "jumped and grabbed the wire."
David Kronberg, a nearby storekeeper, observed the hanging wire, called the defendant to inform it of an emergency, and also called an ambulance. There was proof on both sides that the accident was preceded by a "loud cracking noise," a "big flash" in the vicinity where the accident occurred.
Several eyewitnesses, who were neighbors of decedent and who saw the whole occurrence from the street within 25 feet of decedent, testified for defendant that decedent was warned not to touch the "live wire" and that he jumped up once trying to reach the hanging wire, missed, and made a second try when, unfortunately, he was successful in reaching the wire and was immediately electrocuted.
Plaintiff's expert testified that in his opinion the wire was caused to fall by swaying in the wind and rubbing against the branches so that it eventually deteriorated, resulting in a short circuit and probably burning until it broke and fell. He said that for proper maintenance, inspection of such wires should be made at least every six months, and that it was unsafe to run wires through trees unless the wires were insulated or the trees ...