Standard of Care and Unreasonable Risk

Adams v.Bullock

Court of Appeals of New York,1919

227 N.Y.208,125 N.E.93

CARDOZO,J.The defendant runs a trolley line in the city of Dunkirk,employing the overhead wire system.At one point,the road is crossed by a bridge or culvert which carries the tracks of the Nickle Plate and Pennsylvania railroads.Pedestrians often use the bridge as short cut between streets,and children play on it.On April 21,1916,the plaintiff,a boy of twelve years,came across the bridge,swinging a wire about eight feet long.In swinging it,he brought it in contact with the defendant’s trolley wire,which ran beneath the structure.The side of the bridge was protected by a parapet eighteen inches wide.Four feet seven and three-fourths inches below the top of the parapet,the trolley wire was strung.The plaintiff was shocked and burned when the wires came together.He had a verdict at Trial Term,which has been affirmed at the Appellate Division by a divided court.

We think the verdict cannot stand.The defendant in using an overhead trolley was in the lawful exercise of its franchise.Negligence,therefore,cannot be imputed to it because it used that system and not another.There was,of course,a duty to adopt all reasonable precautions to minimize the resulting perils.We think there is no evidence that this duty was ignored.The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it.Only some extraordinary casualty,not fairly within the area of ordinary prevision,could make it a thing of danger.Reasonable care in the use of a destructive agency imports a high degree of vigilance (Nelson v.Branford L.& W.Co.,75 Conn.548,551;Braun v.Buffalo Ge.El.Co.,200 N.Y.484).But no vigilance,however alert,unless fortified by the gift of prophecy,could have predicted the point upon the route where such an accident would occur.It might with equal reason have been expected anywhere else.At any point upon the route,a mischievous or thoughtless boy might touch the wire with a metal pole,or fling another wire across it.If unable to reach it from the walk,he might stand upon a wagon or climb upon a tree.No special danger at this bridge warned the defendant that there was need of special measures of precaution.No like accident had occurred before.No custom had been disregarded.We think that ordinary caution did not involve forethought of this extraordinary peril.It has been so ruled in like circumstances by courts in other jurisdictions.Nothing to the contrary was held in Braun v.Buffalo Gen.El.Co. (200 N.Y.484).In these cases,the accidents were well within the range of prudent foresight.That was also the basis of the ruling in Nelson v.Branford Lighting & Water Co. There is,we may add,a distinction,not to be ignored,between electric light and trolley wires.The distinction is that the former may be insulated.Chance of harm,though remote,may betoken negligence if needless.Facility of protection may impose a duty to protect.With trolley wires,the case is different.Insulation is impossible.Guards here and there are of little value.To avert the possibility of this accident and others like it at one point or another on the route,the defendant must have abandoned the overhead system,and put the wires underground.Neither its power nor its duty to make the change is shown.To hold it liable upon the facts exhibited in this record would be to charge it as an insurer.

The judgment should be reversed….

Benjamin N.Cardozo (1870-1938)

(From www.michaelariens.com)

Benjamin Nathan Cardozo was born in New York City on May 24,1870,the son of Albert and Rebecca Nathan Cardozo.He was a twin,born with his sister Emily.Cardozo’s ancestors were Sephardic Jews who immigrated to the United States in the 1740s and 1750s from the Iberian peninsula via the Netherlands and England.Shortly after Cardozo was born,his father Albert was implicated in a judicial corruption scandal that was sparked by the Erie Railway takeover wars,in which parties contending for the control of the Erie Railway used the judicial system in a way that perverted the law.In early 1868,Albert Cardozo became a Justice of the Supreme Court of New York County (a trial court),and his conduct as a judge from 1868～71 led to the newly formed Association of the Bar of the City of New York to present charges of corruption against him.The Judiciary Committee of the New York Assembly recommended impeachment,and on the day the recommendation was to be read to the Assembly,Albert Cardozo resigned.Albert Cardozo then practiced law until his death in 1885.Rebecca Cardozo died in 1879,and Benjamin was raised during much of his childhood by his sister Nell,who was 11 years older than Benjamin.At age 15,Cardozo entered Columbia University.Shortly after beginning his studies,Cardozo’s father died.After graduating in 1889,Cardozo entered Columbia University Law School.Cardozo not only wanted to enter a profession that could materially aid himself and his siblings,but also hoped to restore the family name,sullied by his father’s actions as a Justice.After two years,Cardozo left Columbia to practice law.He did not obtain his degree in law,which required attendance in a third year of law school.

From 1891～1914,Benjamin Cardozo practiced law in New York City.He practiced with his brother Albert (Allie) Cardozo,Jr.,until Allie’s death in 1909.He lived at the family’s home with his brother,sisters Nell and Lizzie,and his twin,Emily.

In the November 1913 elections,Cardozo was narrowly elected to the Supreme Court,the same trial court on which his father had served.Cardozo took office on January 5,1914.Less than a month later,Cardozo was designated to sit on the New York Court of Appeals,the highest court in the state.Cardozo was appointed to a seat on the Court of Appeals in 1917,and was elected to that seat the same year.He was the first Jew to serve in the Court of Appeals.Cardozo remained on the Court of Appeals until 1932,becoming Chief Judge on January 1,1927.His tenure was marked by a number of original rulings,in tort and contract law in particular.In 1921,Cardozo gave the Storrs lectures at Yale,which was later published as The Nature of the Judicial Process.This book enhanced greatly Cardozo’s reputation,and the book remains valuable today for the light it throws on judging.Shortly after the Storrs lectures,Cardozo became a member of the group that founded the American Law Institute,which crafted a Restatement of the Law of Torts,Contracts,and a host of other private law subjects.

In early 1932,Justice Oliver Wendell Holmes resigned from the Supreme Court due to advancing age (Holmes was 90.) Cardozo,then 61 (Holmes’s age when appointed to the Supreme Court),was nominated by President Herbert Hoover to the Court.Less than two weeks later,the Senate unanimously approved Cardozo’s nomination.

In late 1937,Cardozo suffered another heart attack,and in early 1938,he suffered a stroke.He died on July 9,1938.