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Nicholas v. New York State Elec. & Gas Corp.

Supreme Court of New York, Appellate Division

February 5, 1954

NEW YORK STATE ELECTRIC & GAS CORPORATION, Appellant, et al., Defendants. NEW YORK STATE ELECTRIC & GAS CORPORATION, Third-Party Plaintiff-Appellant,
MICHAEL MATHEWS et al., Individually and as Copartners Formerly Doing Business under the Name of MATHEWS & KANELOS CO., Third-Party Defendants-Respondents.

Page 292

APPEAL from a judgment of the Supreme Court at a Trial Term (O'BRIEN, J.), entered June 18, 1953, in Erie County, which (1) awarded plaintiff damages on a verdict against defendant-appellant, (2) granted a motion by the other defendant for a dismissal of the complaint, and (3) granted a motion by the third-party defendants for a dismissal of the third-party complaint.


Hugh McM. Russ, Robert S. Lesher and T. Kayler Jenkins for appellant.

Michael Catalano for respondent.

Robert D. Fernbach and Bernard Katzen for third-party defendants-respondents.


This is an appeal by the defendant and third-party plaintiff New York State Electric & Gas Corporation from a judgment in favor of the plaintiff Samuel G. Nicholas for $40,573.17, entered upon a jury verdict for $40,000 and in favor of the third-party defendant Mathews and Kanelos dismissing the third-party complaint, with costs. The action as originally commenced was against the New York State Electric & Gas Corporation, hereinafter referred to as 'electric company' as the sole party defendant. Thereafter plaintiff by leave of the court served a supplemental summons and amended complaint joining the Niagara Mohawk Power Corporation, hereinafter referred to as 'power company' as an additional party defendant.

The answer interposed by the power company contained a cross claim against the electric company. The electric company in turn commenced a third-party action by service of a supplemental summons and a third-party complaint upon the defendant Mathews and Kanelos. The actions were moved for trial at a trial term of the Supreme Court, Erie County. At the close of the plaintiff's case the court, upon motion of the power company, granted a nonsuit and dismissal of the complaint as to that defendant. While the notice of appeal is from each and every part of the judgment as well as from the whole thereof, it specifically refers to the judgment obtained by the plaintiff and the action of the trial court in dismissing the third-party complaint. In any event, no point is made upon the appeal criticizing the action of the court in dismissing the complaint as against the power company.

The facts pertinent to the discussion of this appeal are these: The electric company distributes electric current for industrial

Page 293

and household uses to its customers in numerous towns in Erie County, south of Buffalo, New York. It purchases its current for distribution from the defendant power company which at that time, September 22, 1950, owned and operated a substation at Gardenville, New York, for the distribution of high voltage electricity. Prior to that date the power company had leased a portion of its land within the substation enclosure immediately adjacent to its substation to the electric company. Upon the land so leased the electric company erected a station of its own which included transformers for the reduction of the power purchased from the power company from 115,000 volts to 34,500 volts and various conductors, switches and other equipment for the distribution of power at the reduced voltage to its customers over the various transmission lines emanating from its substation.

The photographs in evidence show the general design of the substation. It consists of a series of upright H beams and attached cross I beams running in an east and west direction. The whole steel structure is grounded so that any current reaching the structure would immediately pass to the ground and be dissipated through the earth. Attached to the cross I beams were bus bars mounted on insulators. The bus bars consisted of hollow copper tubing running north and south which served as conductors of electricity. The bus bars loom large in the matter under review. The other equipment going to make up the substation has already been referred to.

The photographs taken from a point south of the substation looking in a northerly direction bring out in bold relief the south end of the substation where the accident occurred. The two vertical steel uprights shown are twenty-two feet apart supporting the two horizontal six-inch steel I beams. On the lower cross beam is mounted the so-called 'main bus' consisting of three copper tubes which were de-energized or 'cold' at the time of the accident. The tubes in the main bus are atop the three insulators. On the upper cross beam and to the east of the main bus was suspended the so-called 'transfer bus.' This also consisted of three copper tubes which were energized or 'hot' at the time of the accident. The lower of the two cross beams is eighteen feet from the ground and the upper beam is twenty-six feet from the ground. The insulators on which the upper bus bars are suspended are eighteen inches to twenty-one inches long. Thus, the transfer bus is approximately five feet nine inches above the lower cross beam.

Page 294

It appears from the testimony of plaintiff's electrical engineering expert that the electric company's substation was constructed in accordance with accepted engineering principles, was of standard design and the equipment used therein was standard in the industry for that type of electrical installation. Certain parts of the two electrical transmission systems were able to be integrated by means of a tap maintained by the power company in its system known as the 'Shaleton' tap. By use of this tap it was physically possible to furnish electricity to the customers of the electric company located in Hamburg, Orchard Park and Boston, provided the power company could stand the extra load at the time requested by the electric company.

Having briefly outlined the physical layout of the place of the accident, we turn to the facts leading up to the accident. The plaintiff's employers Mathews and Kanelos, the third-party defendants, were partners in the painting business, doing business under the firm name of Mathews & Kanelos Company. They specialized in the painting of structural steel and had done painting of substations. By letter dated March 9, 1950, they solicited the business of the defendant electric company, representing that they had twenty-eight years of experience in structural steel painting. On the following July 11th, the electric company engaged them to wire brush and paint its steel structural substation at Gardenville, New York, where the accident in question occurred.

The record indicates that the plaintiff was an experienced structural steel painter. During the course of his work, he had painted near live electric wires. In his experience it was nothing new to him to be called upon to do painting in close proximity to electric wires or tubes.

Prior to submission of the bid on the painting job, the electric company's assistant superintendent, Mr. Harold C. Coleman (not to be confused with plaintiff's electrical engineer, Mr. J. Burgess Coleman) pointed out to the third-party defendants at the substation the requirements of the job, explaining to them that it was not possible to shut down the entire substation during the painting because it was necessary to furnish electricity to certain of the communities. On that same occasion, it was explained that the bus bars in a portion of the structure would be ...

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