Hardin, P. J.:
On. the 23d of August, 1895, Michael Dwyer, the husband of the plaintiff, in William street in the city of Buffalo, lost his life, and the plaintiff brings this action to recover damages.
A trial was had at the March Trial Term in Erie county before the court and a jury, and a verdict of $6,000 was rendered in favor of the plaintiff.
It is alleged in the complaint that prior to that time the defendant had constructed one of its lines for the transmission of electricity along the northerly side of William street in the city of Buffalo, and that at the northwesterly corner of William street and the tracks of the New York Central and Hudson River Railroad Company, where the same cross William street, defendant had erected a pole to carry its said electric light wires, “ and had negli-. gently and improperly placed the said pole near to a certain other pole containing a large number of telegraph and telephone wires of the Western Union Telegraph Company and the Bell Telephone Company of Buffalo, which said last-mentioned pole and wires were lawfully placed in their position; and the defendant had negligently and improperly strung its electric light wires upon its said line of poles, and had negligently failed to keep and maintain the same in proper condition so that the said electric light wires were immediately under the said telegraph and telephone wires, and one of the said electric light, wires came in contact with a certain iron brace on the pole supporting the said telegraph and telephone wires and forming a part of the structure designed to hold up the said wires, and that by reason of the said electric light wire coming in contact with the said iron brace and of rubbing against the same, the' protecting and insulating material was rubbed off from the said electric light wire so that the said iron brace became heavily charged with electricity, all of which was due to the faulty and negligent construction and maintenance of the said pole and line óf the defendant company.”
The deceased was in the employ of the Western Union Telegraph Company as a lineman, audit became his 'duty- to “lay out,. [126]*126■construct and repair lines .of telegraph wires on the poles of the, said Western- Union Telegraph Company; ” and it is averred that on that day he was directed by his employer to. repair certain tele-, .graph wire on the said William street line- of said company.- It is further averred thatfor the purpose of repairing said wire lie was obliged to and did climb the piole of the Western Union Telegrapih . Compiany located at the, northwesterly corner of William street * . " * standing, near the piole of the defendant * . * * that .while the said Michael Dwyer was climbing the said piole lawfully .and,in the pierfonnance of his duty, and in the exercise of due care and caution, he graspied -or came in contact with the said iron brace ■upon said piole, whicli was in contact with the electric light wire of ■the defendant * * * and was heavily charged with electricity -therefrom, without any knowledge or notice or means of ascertaining that said brace was- in such a condition or that the. said brace was in anyway dangerous, and by reason of touching the said brace lie received a shock of. electricity which caused him, without any fault or negligence on his part, to fall from his piosition to the ground, and .that he was then and there killed and died.”
■ The answer of the defendant admits its incorporation, and “ that the defendant is engaged in the transmission of electricity for sale .and for general lighting; and for other purposes in and throughout the city of Buffalo * * * whicli electricity is transmitted \through metallic wires suspended upon poles which aré generally .placed upon and along the streets of said. city; that the said' wires .are covered with a protecting or insulating material; ” and that the -defendant “ had erected a pole to carry its said electric light wires.”
The answer contained denials,- of certain allegations in the complaint, and alleged “ that the injuries- to the plaintiff’s intestate, as' ;set forth in the complaint, were caused wholly through the fault or negligence tif' plaintiff’s intestate, or some person or piersons to this -defendant unknown.”
From the evidence it appears that the deceased was sent out on -the morning of August twenty-third to remedy some trouble that .had been reported on the line of a telegraph wire of the Western Union, running along William street and crossing the railroad.' -tracks. At about ten o’clock in the morning he climbed, by méans -of iron spurs fastened on the inside of his ankles, the telegraph pole [127]*127belonging'to the Western Union Company while in the performance of his duty. After reaching a point at the upper end of the pole where he could reach the last crossarm on the telegraph pole, which was some twenty-eight feet from the ground, he. reached up with his left hand, apparently with a view to grasp the crossarm or the iron brace under it. He then suddenly threw up both hands and fell over backwards in a circle, his feet clinging to the telegraph pole by the spurs until he had about completed his revolution, when he fell head foremost to the stone pavement at the foot of the telegraph pole, and near to it, dead.
Several witnesses were produced by the plaintiff who described the circumstances attending the deceased’s climbing the pole and the manner in- which he fell. The witnesses are in substantial accord in the narration of the observations made by them of the deceased from the time he commenced to ascend the pole until he descended.
Upon the other hand, the defendant called as a witness one Donovan, who describes the observations that he made attending the deceased’s movements up the pole and down again, in many respects in conflict with the evidence produced by the plaintiff. ■
The evidence offered by the plaintiff tended to establish the fact that when the deceased had climbed up the pole he put out his hand and reached the iron brace which supported the lowest crossarm of the Western Union pole, and that instantly, upon his hand coming in contact with the brace, he received a sudden shock of electricity which caused him to' throw up his arms and to let go of the pole and to fall to the ground.
Upon all the evidence detailed in respect to the circumstances of his fall, it may be said there is room for some doubt whether he was instantly killed by the shock of electricity, or whether that caused him to let go the grasp of the brace fastenings and to fall to the ground, and that his death ensued from the injuries which he received — the breaking of his backbone and the injuries to his skull; and it may bo said that a fair question of fact was presented to the jury to determine whether the proximate cause of his death was the shock of electricity which he received, or the injuries which he sustained by reason of the fall.
The evidence tends to show that, supporting the Western Union wires was a Y shaped brace placed there to strengthen the cross-[128]*128arm. It consisted of two iron bars bolted together at -the bottom by a single bolt and fastened into the telegraph pole some eighteen inches below the crossarm and extending from the pole out to the crossarm at an angle of about forty-five degrees.
The evidence indicates. that- the telegraph pole was erected and the cro.ssarms placed thereon, and the wires of that company placed there in March, 1894, and that subsequently the defendant, under a grant of authority from the common council of the city of Buffalo and in accordance with law, placed its line of poles, wires and lights along William street, being lawfully in the street under a grant from the common council.
.It appears that there were .before the jury two braces and two bolts similar to those on the Western Union pole, and there was evidence tending to indicate that one of defendant’s electric light wires' was in contact with the iron brace, and that the wire, by constant friction caused by nibbing against the iron brace, had lost its insulating cover to such an extent that the copper wire came in direct contact with the iron, brace.-
There was some evidence tending to indicate that the wire of the defendant touched two of the braces, and to the effect that the one where the abrasion of the insulation was the greatest was the westerly one. -
The evidence tends to indicate that the electric light wire was charged-with electricity, carrying at that time about . 1,100 volts, which, according to the witnesses, is sufficient to give a deadly shock and cause instant death to any one receiving the full force thereof.
In addition to the circumstances disclosed by the witnesses who saw the accident, the plaintiff produced at the trial four photographs of the pole in question and its immediate surroundings, and gave evidence in connection therewith as to the manner in which they were taken and as. to the circumstances disclosed in the presence of the witnesses that were engaged in taking the photographs and observing the situation at the time they were taken. The photographs were taken, however, on the twenty-ninth of August,, six days after the accident.
The witness Devlin, who superintended the taking of the photographs, testified that he had climbed the pole about an hour after the accident, and that there had - been no change in the situation, or [129]*129condition, of the pole or the wires in the interval of the six days! No evidence was produced tending to show there had been'any change in the conditions during the period intervening between the death and the taking of the photographs.
■ Apparently the electric light pole stood only about three feet distant from the telegraph pole at the bottom, and the distance between the two was not over five feet in the region of the wires. At the time the photographs were taken, according to the testimony of Hanks, he climbed a pole carrying with him a piece of insulated wire, one end of which had been stripped down to the metal and attached to the iron trolley pole so as to form a metallic circuit for electricity to the ground; that he put the exposed -end of the wire which he held in his hand near to the iron brace, and when the contact was made with the iron brace it produced a flash of light occasioned by a discharge of electricity from the brace into the wire, and through the wire into the trolley pole and into' the ground. According to the facts narrated, in addition to those already mentioned, it is insisted in behalf of the plaintiff that it was established that the brace was heavily charged with electricity occasioned by the contact of the electric wire with it.
During the trial it appeared that the Western Union wires contained only about 160 volts on an average, and, according to the testimony given by some of the witnesses, that sometimes went as high as 250, and that the linemen were accustomed to handle the wires of the Western Union Company without gloves, and without receiving any injury or shock, even if they grasped the wires with the naked hand.
It was sought by the plaintiff to establish that it was the electricity from defendant’s wire which charged the brace, and that the electricity found in the brace could only be accounted for by supposing that the wire of the defendant communicated the same to it. Bearing upon that question evidence was given to show • that telegraph wires were at a very low amperage and that the electric light wires were at. a high amperage.. Evidence was given tending to show that voltage relates to the strength and that- amperage is the amount of the electric fluid.
The plaintiff called as a witness McNierney,. a foreman of the [130]*130'Western Union Telegraph Company, who had charge of the work- . men in 1894, and who was acquainted with the pole where the injury was. received, and he testified that he had'knowledge when the electric 'light.' company’s pole on the northwest corner of William ■street was placed there, and he added :' “ I know that I sent a man to see that they cleared; there was trouble aboiit the electric light men sétting their poles; they set them too close and I had to send to have them clear them.” This witness says the defendant’s poles- ■ were set 'in August, and' he .adds: “I. had some talk' with Mr; McGuire, the general foreman, and Dillon, the superintendent and general foreman, of the electric .light company, about the poles on William street;-this pole was not.so bád as others. I didn’t specially mention it. I had a talk with them about the series of poles on William street, near the Central Belt line, of which this, pole was one.. * * * After the new electric light poles ■ were set- they were up close to my crossarms, but not ,so close they would inter-' fere with my wires,, with the exception of one place they raised up • my wire on to the. crossarm, and that is. the first pole east of this pole in. question. * * * I had'a. talk with Mr. Dillon,'the. general foreman, about this wire, and.others. If this electric light wire was only about six inches below the.bottom crossarm, it would be, about eleven, inches from' the Western Union wires,- which were above the ' crossarm..,. The crossarm. being four inches wide and. the pin above being six inches, the wire would, be .five to six inches above the top of the crossarm; the crossarm would be about four inches, that would make nine or ten inches, and the. -electric light wire was six. inches' below that,.', so it would make the electric light wire something like eleven inches from the nearest Western Union wire. If' one of the Western Union, wires sagged or broke and ' came in contact with the electric light wires, it would burn out our safety wires and probably our. instrument. The electric light wires and our wires run along William street parallel, the electric light wires were right , under, our .wires and run from pole' to pole, • * • * *. The electric light-wires áre insulated. - * . * .* If that insulating material is ripped off -the electric light wire and it comes in contact with another piece of metal, that, metal becomes, charged with electricity if ■ there is any connection with the ground-, or with any'metal substance going to the ground. In this case if the elec-. [131]*131trie ’ light wire which was strung on this electric light pole to the next pole east, rubbed against the iron brace on the Western Union pole, and the insulating material on the electric light wire was rubbed off, that iron brace would become charged with electricity, and if any person caught hold of that iron brace with his bare hand and he also in any way made a circuit to the ground, either through another wire that he had in his hand, or in any way, he would receive a heavy shock of electricity in this case. The effect of that shock would be,- well, holding that brace, my experience is it would throw him, make him lose his hold, give him a shock. If this iron brace that supported the lower crossarm was not charged with electricity it was a perfectly safe thing to catch hold of. Unless it got charged with electricity from some outside source away from our pole there was no danger in catching hold of that brace. The brace was strong. That was a proper thing to catch hold of up there ; it is customary to catch hold of that. It is a proper thing for a man up there, examining a wire to see if it is properly insulated, to catch hold of that brace in doing so. I have done that myself. If the brace is charged with electricity from an electric light wire it is not a safe thing to do.”
Numerous witnesses testified that a party could not discover, by looking up from the street, whether the electric light wire was in actual contact with the iron brace on the' telegraph company’s pole, although it could be seen that it was close to the brace. Nor could any one determine that the insulating material had been rubbed off while standing upon the ground.
The witness Devlin, who examined the pole, brace and wires an hour or two after the accident, testified: “ I found it touched the Western Union brace on the street side under the last crossarm; the electric light wire on the pin next to the pole on the street side. There were three electric light wires on that pole,‘two on' one side and one on the other. * * * I did not test the brace at that time or touch it. I should judge that where the brace and wire came in contact would be about five or eight inches below the bottom of the Western Union crossarm. I could not tell until I got up on the pole whether the insulating material that surrounded the electric light wire was rubbed off. When I got close I could see that the insulation was worn off of the electric light wire; it looked like [132]*132the wire itself was directly in contact with the brace. * * * I looked at the wire and brace in question from the ground ; Icouldn’t see any change from the 23d of August to the time on the 29th when I went to take the picture. I looked to see and there, didn’t., look to be any to me.” This witness also testified that he saw .the flash when the picture was taken, and he added : “ I know what, made that flash.” When the question was -.propounded to him,, “ What made that flash ? ” it was objected to on the ground that the question called for an opinion and that the witness has not been shown to be competent. The objection was overruled and the. defendant took an exception. The witness then added: “ The contact of that wire with the brace made the flash.” The witness was-then asked, “You were asked to explain what made the flash?”' and the' objection was renewed and an exception taken, and the witness answered: “ Touching the wire fo the brace made the flash. Q. What did that indicate .in regard to the conditionof the brace?”' The witness answered : “ To the best of my recollection that flash was made three or four times.”
We think the question called for an observed fact, and that when the witness described the circumstances under which the contact: was made, by means of the wire with the brace, and that as soon-as-the contact took place that a flash appeared, he stated a fact which we think was competent and the exception to his evidence does' not present error'.
In Manke v. People (17 Hun, 417 ; S. 0. affd., 78 N. Y. 611} Taloott, P. J., said: “ The question discussed lies very near the line which divides cases in which opinions are competent to be given in evidence from those which are clearly inadmissible.” And he reached the conclusion that the opinion of the witness, formed by a process of reasoning upon the facts known to him, was incompetent,, as he was asked whether a piece of alleged wadding fired from a ■ gun had the appearance of wadding fired from a gun and was. allowed to express his opinion. We think the case differs from-the one in hand.
The case of Ferguson v. ITubbell (97 N.' Y. 507) differs from the-case here, as there it was held that it was not proper to allow a. witness to answer as to when was the proper time to burn & fallow.
[133]*133It is insisted in behalf of the defendant that the evidence to which we have adverted proves nothing whatever against the defendant, and it is suggested that the intestate lost his balance and fell to the ground, or that in some other way he fell, and that the evidence does not sufficiently indicate that he received any current of electricity sufficient to cause a shock from any wires except his own wires.-
The plaintiff called as a witness one Hurlbtirt, who saw the accident and helped pick up the deceased and carry him into the flag . shanty, and the witness stated : “ He fell off on the east side; right off backwards ; * * * his head went back and his spurs held his feet; his head was towards the west as he fell back. He didn’t breathe after I got there. He struck right on the sidewalk, right near the curbstone, right at the foot of the pole on the side nearest the tracks, just east of the'pole on the sidewalk; he had his coil of Wire on his right shoulder. * * * I remember some braces on that telegraph pole under the crossarm. He was near the crossarm, so that if he had put his hand out he could have- reached the brace. I think he was within reaching distance of the brace.” The witness then added that he looked at his hands after he fell, “and on the left hand there was a little rust; it might have been an inch wide, just marked across the palm of his hand, a mark of rust.”
The deceased was taken to the morgue, and the next day an autopsy was held in the presence of the coroner and physicians, and one of the physicians testifies that conditions and circumstances were found which tended to indicate that the deceased received a shock of electricity. In speaking of the hand one of the physicians observed: “ It looked as if the hand had come in contact with a wire or brace, and that it had produced a slight hyperaemic condition of the skin on the joint. * * * There was something in the man’s
condition as I examined it which indicated to me that he had received a more or less severe shock of electricity.” This witness gave other facts and circumstances tending to fortify the opinion expressed by him, and he was thoroughly' cross-examined, and, to some extent, his utterances were shaken.
Upon this subject the defendant called two other physicians, who gave evidence tending to contradict the testimony offered by the [134]*134plaintiff relating to the appearance ¡and indications of the deceased, •.and tending to show, that he was not a victim of an'electric shock.
. After a careful examination of the evidence supporting the theory of the plaintiff, and the evidence of the defendant tending to contradict and to explain, and to ■ overcome, the evidence of the plaintiff, we are of the opinion that a question of fact was presented to. the jury -for determination, as .to whether the deceased received- an electric- shock which caused him to: fall or which caused his death. We think the questions presented by the evidence, in regard to- the circumstances of his injuries required the submission of the question of fact in that regard to the jury,, and. that we ought not to dis-. tiirb the verdict of the jury so- far as it relates to that branch of the case.
We think Strohm v. N. Y., L. E. & W. R. R. Co. (96 N. Y. 305), to which we are referred by the learned counsel for the appellant differs from the. case in hand. ¡In that case a' speculative opinion was held not to be admissible which related to consequences which were contingent, speculative^ or merely possible as to the future. ' '
The evidence to which we have adverted in the case here related ' to the conditions of the body of the deceased as seen, inspected and disclosed to the physicians- making the post mortem examination, and, upon the conflict found in that evidence, we think a question was fairly presented for the consideration of the jury. '
Whether the deceased took hold of the brace with his. right hand or not may be said to have been a question of some doubt, upon the evidence-which, was offered at the-trial, as it was also a question of -fact to determine whether, the injuries which he received-resulted from clutching the wires of his own company having a voltage of only 160, of whether he. received the greater shock from the brace' which was in contact with the wire carrying a voltage of 1,100. We think the plaintiff’s evidence, as well, as the evidence offered by the defense, left those questions in such a condition that it was the d.u-ty of the court to submit, the -same to the jury, and that the trial judge committed no error in refusing to direct a verdict as requested by the- defendant. - .
It is strenuously argued by the learned counsel for the appellant that -the deceased could not possibly- have fallen from the pole- in. [135]*135question because of any shock which he received from defendant’s wire, and, in fact, did not receive any such shock, but fell accidentally and while carelessly leaning back too far to carry over the testing wire from the trolley pole to his wire, or by a shock from his own wire, or from the street railway wires on the trolley pole. We are hot able to assent to the argument of the learned counsel in that regard, and cannot, therefore, interfere with the verdict upon any conclusions we may form in regard to such aspects of the case. We think the questions properly belonged to the jury.
It is appropriate at this point to recall tire fact that the defendant was compelled to concede “that the wire of the defendant’s lighting system, which was used for carrying a death-dealing current, was against the brace ou the Western Union pole, and that the plaintiff’s intestate w&s in a position where he might have touched the brace,” and that the insulation had been worn off; and the facts being before the court upon such questions, we think the court committed no error in taking the verdict of the jury in respect thereto* and that' the evidence presented a legitimate question for the jury to determine whether the plaintiff’s intestate received a shock from the defendant’s wire which caused his death.
In Clarke v. Nassau Electric R. R. Co. (9 App. Div. 54) it was said: “ The fact that the defendant brought electricity into the street for use as a motive power, and the fact that electricity so employed was capable of escaping in such, a way as to produce the casualty" which actually took place, were sufficient, taken together, to justify the inference that the accident was due to the agency of the defendant, in the absence of proof that it was otherwise caused. The maxiin res ipsa loquitur is directly applicable.” .
In Ennis v. Gray (87 Hun, 361) it was said : “ So here we might ask whether the happening of this accident does not carry with it an imputation of negligence, it being self-evident that if the wires had been properly insulated it would not have occurred, and it being equally clear that, with the exercise of ordinary care, defective insulation could be avoided. * * * The plaintiff assumed the burden of establishing the negligence of the defendant, and in that connection presented evidence from which the jury properly could infer that the position and manner of construction of the wiring and electrical converter were improper, and that in live places the [136]*136wire was imperfectly insulated, and bore evidence .of having been iu that condition for some time.” (Evans v. Keystone Gas Co., 148 N. Y. 113.)
Here we have the positive evidence that the wire of the defendant was carrying a large' voltage, and the insulation- had' been worn off where the wire came in contact with the brace of the Western Union Telegraph Company, and we have the fact that the deceased was legitimately in the pursuit of his employment upon the pole of the Western Union, and that while upon the ground the fact was not discoverable by ordinary care and observation that the defendant’s wire was in contact with the brace, and that the insulation had been rubbed off to such an extent as to enable- the wire to charge, the brace, and we think" it was legitimately a question of fact for the jury to determine, upon the whole volume of evidence that was delivered, whether the deceased received a shock from the brace which had become heavily charged with electricity from the wire of the defendant. We think the evidence was sufficient to. warrant the jury in finding that the. defendant was negligent in having so left its wire that it might come in contact and lose its insulation and charge the brace. And it was also a question whether the.-' defendant had been negligent in inspecting its wire and properly guarding against its contact with the property" of the Western Union. And we "think the case fails within the principle laid down in Clarke v. Nassau Electric R. R. Co. (supra), where it was held “ that the evidence amply warranted the inference that the horse was killed by an electric shock received from some source, and that as defendant had brought electricity into the street for use as a motive power, and as electricity so employed was capable of escaping in such a way as to produce the casualty ■ which actually took place,' these facts were sufficient to justify the inference that the accident was due to the agency of the defendant in the absence of proof that it was otherwise caused.”
In the case at hand it was - for the jury to- determine whether the accident was caused by other circumstances, stich as were disclosed in the large volume of evidence offered by the defendant tending to account for the accident, without its fault or negligence.
After perusing that evidence we are not able to say that the jury has gone wrong, or that the trial judge committed any error in [137]*137leaving the whole question of defendant’s alleged negligence to the jury. Nor do we think the learned trial judge committed any error in submitting to the jury the' question as to whether the plaintiff was guilty of contributory negligence. Although it was conceded that the deceased did not wear any gloves, the evidence tended to indicate that none were in use by the employees of the Western Union Telegraph Company, nor was there necessity for their use in the ordinary business in which the deceased was engaged.
Doubtless the deceased supposed that" the "wires of the defendant had been properly insulated, and in making use of the brace for his aid or protection when holding himself upon the pole with spurs he ■only pursued the ordinary course pursued by persons of ordinary care and prudence when engaged in such employment. At least the evidence warranted the jury in so finding, and, therefore, we ought not to disturb their verdict in that regard.
Although Aldrich, foreman of the Bell Telephone Company, testified that the company had rules requiring employees to wear gloves working on poles around trolley and electric light wires, and that their men “ are supposed to have gloves with them,” it was, nevertheless, a question of fact for the jury to determine whether the deceased exercised ordinary care under the circumstances disclosed by the evidence as to his employment as a lineman in the discharge of his duties relating to the Western Union wires. (Gilman v. Boston & M. R. R. Co., 47 N. E. Rep. 193.)
The learned trial judge delivered a full and exhaustive charge to the jury, in the course of which he said: “ The measure of the defendant’s duty, with reference to the erection of this pole and of these lines, was reasonable care and prudence under the circumstances which surrounded the operation. That was the measure of its duty, and if it used that degree of care and prudence which a man, an intelligent man, would ordinarily use in his private business, under the same circumstances, then the duty,- so far as the constructing of the poles and line is concerned, was performed.”. He then proceeded to say: “ Assuming that the pole and wire were carefully and prudently erected at tins point, then the duty devolved upon this defendant of afterwards maintaining a reasonable oversight, supervision and inspection, to see that the wire and the pole [138]*138was' kept in a safe and suitable condition, therefore, the claim of the plaintiff is that - they failed, entirely failed, according to the evidence in the case, to' maintain such oversight and supervision after the pole was erected, and that in consequence of that failure, on the part of the defendant, that the insulation of the wire was worn, and the wire itself came in contact with the brace, and created a condition of things which resulted in this man’s death.”
He then proceeded to submit carefully the question whether the deceased was guilty of contributory negligence to the jury, and in response to a request that lie charge the jury “ that there is no evidence sufficient to warrant the jury in finding that when Dwyer ■received his fall there was any apparent trouble, or delect in the defendant’s system of wires other than the alleged defect of the wire in contact with the brace on the pole in question,” he observed: “ There is no direct evidence of it. I do not know there is any.” The counsel for the plaintiff then said : “ I admit there is no direct, evidence, but I think there is inferential evidence.” We think the court was not called .upon to go any further in its charge, or to restate its response to the requests as made.'
Upon the whole case we are of the opinion that the evidence warranted the jury in finding that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence, and that the negligence of the defendant was the' proximate cause of the death of the intestate^ and that the learned trial judge committed no error in refusing the motion for a new trial on the minutes, and we, therefore, affirm the order. '■
All concur, except Follett, J., not sitting.
Order affirmed, with costs.