For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the Court was delivered by Francis, J.
[56 NJ Page 68] The decedent, Verges N. Black, met his death by electrocution allegedly caused by the negligent maintenance of a high voltage wire by defendant Public Service Electric and Gas Company. Thereafter this damage action was brought by plaintiff, Black's widow, as administratrix ad prosequendum under the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq. Trial resulted in dismissal at the close of the plaintiff's case. However, on appeal the Appellate Division declared that the evidence adduced below was sufficient to create a jury question as to defendant's negligence and, consequently, ordered a new trial. Black v. Public Service Electric & Gas Co., 98 N.J. Super. 366 (App. Div. 1968). On retrial, plaintiff presented the theory recognized by the Appellate Division as establishing a factual issue of negligence, and also renewed her claim (advanced and rejected on appeal after the first trial) that an additional basis of liability existed. This additional alleged basis of liability, to be discussed hereafter, was again rejected by the trial court. Thus, the case was sent to the jury for decision on the limited theory of liability which had produced the
earlier reversal. The jury returned a verdict for the defendant and the present appeal followed. This time the Appellate Division affirmed in an unreported opinion. We granted certification on plaintiff's petition. 54 N.J. 509 (1969).
The factual picture of the case is not complicated. Central Construction Company, decedent's employer, was engaged in installing a sewer under Route 1 near East Lincoln Avenue in Rahway, N.J. Some time prior to the fatal accident a tunnel had been dug under Route 1. On March 18, 1965, Black, a Central Construction Company laborer, was a member of a crew engaged in lining up pipes and rails preparatory to their installation in the tunnel. Performance of the task required the use of a large crane with a long boom, and the working crew consisted of three men, i.e., two laborers, one of whom was Black, and a crane operator who was the foreman. The crane had been in the area nearby the tunnel for three or four weeks before the accident.
The evidence showed that defendant Public Service maintained poles on both the east and the west sides of Route 1. High voltage wires, installed by defendant, carrying electricity loads of 26,400 volts were attached to and ran between the poles at a height of 33 feet four inches above the ground at the point involved in this case. The pole on the east side of Route 1 bearing its highly electrified wire or wires was near the tunnel and in close proximity to the crane and the scene of the accident. The wires were not insulated and there were no signs or notices of any kind on the poles, on the wires or in the area to warn of the dangerous nature of the high tension lines. Moreover, as the first Appellate Division opinion noted there was ample evidence in the plaintiff's case (which need not be repeated here, see 98 N.J. Super., at 375-376) from which it could be found that Public Service had knowledge of the work being done in, around and under Route 1 near the poles in question, and of the presence of the crane close to the poles.
It is undisputed that no notice or warning of any kind was given by defendant to Central Construction Company's employees, including Black, of the lethal nature of the load of electricity being carried by the wires or of the danger which would result from uninsulated or unprotected contact with them.
On March 18, 1965, the crane was in position close to the wire-bearing pole on the east side of the highway. Black and his fellow-laborer had hooked up a section of cast iron sewer pipe to the boom of the crane. This pipe was to be lifted and put in place on rails in the tunnel. The precise distance between the top of the crane and the wires at this time does not appear. The crane operator had worked around wires on other occasions and said he knew that the crane should not be operated closer than six feet from electric wires. He said also that just before the lifting operation the top of the crane was more than six feet from the wires, and further that Black and the other laborer indicated to him that the crane was free of the wires. He "assumed" that the lines were electric wires, but he had no idea they were of the high tension nature. As the crane was raising the pipe some part of the boom or cable touched or came in close proximity to the high voltage line. As a result Black, who was on the ground apparently guiding the pipe, came to his death by electrocution. Police officers who arrived on the scene shortly after the accident said the crane was at that time six inches to a foot away from the wire. An expert for the defense testified that he examined the wire and the end of the boom from an aerial truck, and in his opinion the two had come into contact.
At the retrial, plaintiff contended that under the circumstances of the case it was for the jury to say whether the exercise of due care required defendant Public Service to erect, post or attach signs on or near the poles or wires warning members of the public or employees of an independent contractor working in the area of the dangerous condition of the highly electrically charged wires. A request to
charge containing the substance of that contention was submitted to the trial judge who refused to so instruct the jury. Instead he removed the issue entirely from the jury's consideration saying in his charge that he had ruled "that the defendant Public Service violated no duty by not posting any signs on the poles and the wires in the area as contended originally by the plaintiff."
At the first trial, plaintiff had raised the same contention respecting the obligation of the utility to give warning of the danger by means of signs or notices on the poles or wires. In answer Public Service maintained that the industry standards for erection and maintenance of such high tension wires were established by the National Electrical Safety Code, and that the code imposed no such duty to warn with respect to the type of poles or wires which were involved in this case. It pointed out that the only requirement set out in the Code was that for overhead wires there shall be a clearance of 22 feet over public streets, alleys or roads in urban or rural districts and over driveways to residences and garages. Since the wires in question were 33 feet four inches above Route 1, defendant urged that no violation of the Code had been shown.
On the first appeal the Appellate Division agreed that no breach of any express requirement of the Code had been proved. But that fact was not regarded as dispositive of the plaintiff's case. The court held that since the proof in the case would justify a finding that Public Service knew or should have known of both the construction work being carried on in the proximity of its dangerously charged uninsulated wires, and of the presence of a crane with a long, high boom for probable use in connection therewith, it was for the jury to say whether the utility was negligent in failing to take reasonable precautions to avoid or prevent injury to the construction workers. It is significant to note the absence of any declaration in that opinion negating or excluding as a reasonably precautionary measure an obligation to post or attach notices or signs on the wire-bearing
poles warning members of the public or such workers that the wires were dangerously energized with electricity. Obviously whether due care required such notices or signs, or the de-energizing of the wires while the construction work was being done, or the temporary bypassing or relocation of the wires, or actual and express notice to the construction workers of the danger, or supervision of the crane operation by utility employees familiar with the danger, or some other action or precautionary measure, such as insulation, was left for development at the retrial.
Plaintiff concluded from the opinion that failure of defendant to attach signs or notices on the poles warning of the dangerous high tension lines was properly an issue for jury consideration at the retrial. As noted above that view prompted the submission of the request to charge that:
"When permission is given to suspend along a public highway a wire, so charged with electricity as to be dangerous to the public if they come in contact with it, this permission entails a duty to give reasonable warning of such danger and it is a question of fact for the jury to determine as to whether in this case the failure on the part of the defendant Public Service to erect signs warning of the danger in its wires constituted negligence on the part of the defendant."
In our judgment it was error to deny that request; it was likewise error to instruct the jury that Public Service had violated no duty owed to the decedent in failing to post warning signs "on the poles and the wires in the area * * *."
An uninsulated high voltage power line carrying a deadly current must be considered one of the most dangerous contrivances known to man. In the pursuit of its business by installing and maintaining such a line a utility company must use care commensurate with the risk of harm, i.e., a high degree of care, to others who in the course of their ordinary and lawful activities might suffer injury, death or damage therefrom. In the utilization of such deadly wires along, adjacent to, across or over public highways, streets or ways, or private property, the company must be aware not only of the killing quality of its high voltage [56 NJ Page 73] lines, but also of the need to adjust the degree of care exercised in its control and maintenance of such wires to the demands of commonly known technological advances in other forms of industrial and business development. It is no answer for a company engaged in the public sale of such a highly destructive agency as electricity to say that precautionary measures which may have been adequate to meet the test of due care 50 years ago, when the lines were installed, must be regarded as sufficient in a modern industrial society. Black v. Public Service Electric & Gas Co., supra, 98 N.J. Super., at 373. For example, it is a matter of common knowledge, for the last 25 years at least, that massive machines, derricks, aerial towers and cranes with tall booms are regularly used in construction work, excavation, road building, factories and other types of buildings. It may also be noticed judicially that such mechanical and automotive devices move from place to place along our public highways and streets and also operate on or near to private property in proximity to overhead wires carrying a deadly current. In our view when a utility strings or maintains, in the manner described above, uninsulated wires carrying a lethal charge of electricity it must recognize that as an incident of modern industrial life equipment such as derricks, aerial towers and cranes with tall booms may in the course of their ordinary use come into contact with such deadly wires. And, even though an assumption is made that the average employee or laborer working on or about such high rise contrivances has or may have some notion that overhead lines running between poles carry some electrical current, it cannot be assumed in the absence of signs or notices or warnings of some reasonable type, that such a workman is or should be aware that the wires are high tension lines carrying such high voltage as to be a serious danger to life or limb if his employer's equipment makes contact with them. Further it would be unreasonable to say as a matter of law that such a workman should be aware that the derrick or crane or other equipment on
which he was working would upon contact with the wires act as a conductor of the lethal current.
Under the circumstances, when high tension uninsulated wires are strung or maintained in such position that contact may occur between them and cranes or like mechanical contrivances which are legitimately in the vicinity of the wires in the ordinary course of operation, we regard such contact with its accompanying danger as a condition or occurrence which is reasonably to be anticipated by the utility. Given the duty to anticipate such danger, the nature of the obligation to exercise care commensurate with the risk was explained succinctly by Justice (then Judge) Proctor in Rapp v. Public Service Coordinated Transport, Inc., 15 N.J. Super. 305, 312 (App. Div. 1951), aff'd 9 N.J. 11 (1952): "When permission is given to suspend along a public highway a wire, so charged with electricity as to be dangerous to the public if they come in contact with it, this permission entails a duty to give reasonable warning of such danger." See also, Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 270, 274 (E. ae A. 1948); compare, e.g., Black v. Public Service Electric & Gas Co., supra, 98 N.J. Super., at 373; Nevis v. Pacific Gas & Electric Co., 266 P. 2d 213 (Cal. Ct. App.), aff'd 43 Cal. 2d 626, 275 P. 2d 761 (Cal. Sup. Ct. 1954); Fairbairn v. American River Electric Co., 179 Cal. 157, 175 P. 637 (1918), and the same case on an earlier appeal, 170 Cal. 115, 148 P. 788 (1915); Conowingo Power Co. v. State of Maryland, 120 F.2d 870, 873 (4 Cir. 1941); Gladden v. Missouri Public Service Company, 277 S.W. 2d 510, 515 (Mo. Sup. Ct. 1955); Chatfield v. New York State Gas & Electric Corp., 57 N.Y.S. 2d ...