Dechert v. Municipal Electric Light Co.

The action is brought to recover damages suffered! by Joseph Ryan, for whom the plaintiff has been appointed receiver, because of the destruction of his place of business, owing, as it is claimed, to the negligence of the defendant in not properly insulating electric wires, the consequence of which was that the electricity set fire to the building and destroyed it. The defense was that the defendant had been, released by the contract from all claim s¡ for defective wiring, upon certain conditions, with which the defendant had complied. The contract in question was contained in two separate papers, in one of which is found the release relied upon by the defendant. The contract for wiring is not on the same paper as the contract which contained the release, and the plaintiff insists that the two papers constituted, not one, but two, separate contracts; and several of th.e exceptions taken upon the trial grow out of this;

But these are not all the exceptions in the case. Joseph Ryan made a contract, on the 19th day of July, 1892, with the defendant, by which the defendant agreed to wire his premises, Nos. 1059 and 1061 Broadway, Brooklyn, in a manner more particularly described ¡therein, for which Ryan agreed to pay them $600 in the manner provided in the contract. At the same time, and as a part of the same ■-contract, as the jury have found, the defendant was requested, and .agreed, to supply the electrical current and electrical equipments ¡for lighting the premises. That contract was also in writing, and

- contained several conditions, of which the eighth is as follows:

■“The company [meaning the defendant] is hereby released from all claims lor damages resulting from the use of electrical current, when the wiring and «electrical equipments on the premises of the consumer shall have been approved «by the New York Board of Fire Underwriters, or other proper authorities.” .

"This was the condition upon which the defendant relied as releasing it from all claim for damages on account of any negligent wiring, if any such thing there was. Upon the trial, the court first .¡submitted to the jury the question whether the two instruments ■were parts of one negotiation and one agreement, and were under■-stood by the parties to constitute only a single agreement, and then «charged, in substance, that if the papers were but one single agréeTinent, then term 8 (above quoted) limited the liability of the defendsant with reference to the wiring of Ryan’s buildings, and that the defendant in such case would be entitled to a verdict, in view of the ■vincontradicted evidence that, before the date of the fire, the wiring ¡and electrical equipment on Ryan’s premises had been approved by «■'.the New York Board of Fire Underwriters. To this charge, in the ■various ways in which it was given to the jury, the plaintiff ex--septed.

The plaintiff insists that the defendant never had complied with ¡-the condition in term 8, and never had procured the wiring and electrical equipments on the premises to be approved by the New '.York Board of Fire Underwriters. If that be so, then, undoubtedly, "•«the charge was erroneous, and the exception was well taken. In «¡examining the question whether the wiring and electrical equipEments were approved, it must be remembered that term 8 of the confteet, which provides for a release of the defendant from liability an ease of such approval, was drafted by the defendant itself, and was one of the conditions imposed by the defendant upon Ryan in t£be contract which it drew. It must, therefore, be construed strictly, ¡¡as against the defendant, which drew the contract and framed the toms of it to suit itself. The condition of the release is that the ■«wiring, and electrical equipments shall be approved.. While it must

“This certifies that the electrical equipment of the Municipal Electric Light Company” on the premises in question “is in full compliance with the standard requirements of the board, adopted January 15th, 1890, as per inspector’s report dated August 18th, 1892, and numbered 11,142.”

This paper was signed, “James Harrison, Assistant Superintendent.” Indorsed upon this paper was .the following:

“Present condition of equipment approved. See indorsement on report 11,142.”

This, also, was signed by the assistant superintendent. In connection with that report there was offered in evidence the report furnished to the New York Board of Fire Underwriters by the inspector, which was received and appears in the record. It appears from that report that the electrical equipment was examined, and its condition stated, and that a certain portion of the report relates especially to the wiring, and contains the answers to certain questions in that regard applying to that particular thing.

We think that this certificate was not a compliance with the requirements of the eighth term of the contract, so as to release the defendant from liability for damages occurring because of its negligence in wiring the premises. What the plaintiff was entitled to was, not only that the wiring should be inspected by some one authorized -by the board of fire underwriters to do it, but that after the inspection it should be approved by that board. It is not necessary to consider here whether the inspection was such as the plaintiff had the right to have, or whether the terms of the contract are broad enough to release the defendant from its own negligence in wiring, even though the wiring had been approved. All that it is necessary for us to say is that, before the defendant could insist upon the release provided for in term 8, it was necessary that it should show that the .wiring as well as the electrical equipment had been approved by the board. This the certificate does not show. On the contrary, although the inspector seems to have made a report

There are two exceptions to evidence which, we think, should be considered. The plaintiff, as bearing upon the question of the defendant’s negligence, proved, in the first place, the manner in which the wiring had been done, and the means which had been taken for insulating wires. He then offered in evidence the rules of various boards of fire underwriters and electric light companies, prescribing the way in which wiring should be- done.' This evidence was objected to, and was excluded, and the plaintiff insists that'this ruling was erroneous. With this contention we do not agree. The question presented here was simply whether the work in question was properly done. That was to be determined by evidence showing, in the first place, in what way it was done, and then showing whether or not the work, as done, was proper. Whether the work done was proper was to be proved by the evidence of persons who were familiar with the manner of doing it, and were able to say whether work done as this was would provide a proper insulation for the wires. That was to be proved by testimony of the fact, and the sworn opinion of witnesses, if necessary, based upon the facts. The rules of other companies were neither statements of fact nor sworn testimony of opinion. They were, at best, only the declarations of various people, made out of court, and not under sanction of an oath, as to what, in their opinion, would be a proper mode of insulating wires through which electricity was intended to be conducted. They were of no greater force than the declarations of anybody else, and for that reason they were entirely incompetent.

The case of Abel v. Canal Co., 103 N. Y. 581 , 9 N. E. 325 , and 128 N. Y. 662 , 28 N. E. 663 , and cases of that kind, are entirely different, The claim of the plaintiff in that case was that the defendant had not made proper rules for the government of its employés; and, by way of showing that rules might have been made, and that proper rules would have protected the plaintiff’s intestate, the plaintiff was permitted to give in evidence rules of other companies engaged in the same business, as showing that it was feasible to provide rules which should protect the employé. The question there

Joseph Byan, who had been the owner of these buildings, had been sworn by the plaintiff, afid had given testimony as to the manner in which the fire occurred. Upon his cross-examination, he was confronted with declarations which it was said he had made, and which tended to contradict the evidence given by him upon the trial. After the cross-examination the plaintiff offered in evidence, having duly proved its genuineness, another declaration of Byan, made before the fire marshal of the city of Brooklyn shortly after the fire, and before his other declarations had been made, stating the circumstances under which he discovered the fire, substantially as they had been given upon the trial. That evidence was objected to, and excluded, and its exclusion is now relied upon as error. We think it is not erroneous. The rule undoubtedly is that proof of declarations made by a witness out of court cannot be used in corroboration of testimony which he has given upon the trial of a cause. There are few exceptions to this rule. Where it is claimed that the witness has given his testimony under the promptings of some motive which affected him at the trial, it has been permitted to give proof of his declarations, made before the motive existed, as tending to disprove its operation upon his mind; but this is practically the extent of the exception to the admission of such declarations. The mere fact that the declaration . offered in corroboration was made shortly after the occurrence, and long before the testimony was given upon the trial, does not, of itself, afford any reason for inferring that the testimony upon the trial was correct; and, although it was said in a leading case (Robb v. Hackley, 23 Wend. 50 ) that, in contradiction of evidence tending to show that the account of the transaction given by the witness is a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change in circumstances, could have been foreseen, yet where the contradiction simply goes, as in this case, to the credit to be given to the recollection of the witness, the fact that he has previously stated the transaction in the same way as he had upon the trial is not competent by way of corroboration. Such evidence is only competent, if at all, where the charge is that the evidence given upon the trial is a fabrication made out of whole cloth, under the influence of a motive which has come to operate since the occurrence; and, where that is the case, it may well be that the exception which permits proof of a declaration before the motive came into existence is material.