Argued June term, 1894, before THE CHIEF JUSTICE and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Van Winkle & Klink, for plaintiffs in error. Gaede & Minturn, for defendant in

error.

VAN SYCKEL, J. On the 6th of July, 1891, the plaintiff executed and delivered to the defendant Mary C. Hintze the following assignment: "The undersigned, John Charles Taylor, of Jersey City, N. J., grandson of the late Benjamin S. Taylor, and son of James H. Taylor, deceased, in consideration of the sum of fifteen hundred dollars, to me in hand paid, the receipt whereof is hereby acknowledged, have sold and assigned, and do hereby sell and assign, to Mary C. Hintze, of the city of Hoboken, county of Hudson, and state of New Jersey, the sum of twentyfour hundred dollars out of the bequest made to me by the will of my said grandfather, made March 22, 1871, being for the sum of five thousand dollars, which is payable to me on my attaining my twenty-fifth birthday; and I hereby constitute and appoint Mary C. Hintze my true and lawful attorney, in my place and stead to demand and receive from William B. Goodspead, executor of A. B. Shepherd, or any other party in whose possession or under whose control the said bequest may be, the said sum of twenty-four hundred dollars, and to institute any suit or proceedings to recover the same. In witness whereof, I have hereunto set my hand and seal, this 6th day of July, 1891. John Charles Taylor. Signed, sealed, and delivered in presence of: W. E. Hovenberg. Henry C. Hintze."

It is admitted that Henry C. Hintze paid to the plaintiff the sum of $1,500 in said assignment mentioned, and that when said legacy became due and payable the said sum of $2,400 was paid to said Henry C. Hintze. Thereupon Taylor, the plaintiff, brought this suit to recover the difference between the sum paid to him by Henry C. Hintze and the amount received by him for said legacy, alleging that the transaction was a loan of $1,500 to him, and not a sale of the legacy by him, and that therefore the loan was usurious. The writ of error in this case is prosecuted to set aside the judgment recovered by the plaintiff in the court below.

It is well settled that when a plaintiff is in pa i delicto with the defendant money paid by the former to the latter cannot be recovered back. This rule applies where the act done is in itself immoral, or a violation of the general laws of public policy, but it does not bar a recovery where the law violated is intended for the protection of the citizen against oppression, extortion, deceit.

The distinction was very clearly drawn in Jones v. Barkley, 2 Doug. 684. In delivering the opinion in that case, Lord Mansfield said he well remembered the case of Smith v. Bromley, Id. 696, note, and that

Mr. Justice Buller had a very good note of it which he desired him to read, and which he accordingly did. It appears that Lord Mansfield, in deciding that case, said "that if the act is in itself immoral, or a violation of the general laws of public policy, there the party paying shall not have his action; for where both parties are equally criminal against such general laws the rule is 'potior est carditio defendentis.' But there are other laws which are calculated for the protection of the subject against oppression, extortion, and deceit. If such laws are violated, and the defendant takes advantage of the plaintiff's condition or situation, there the plaintiff shall recover; and it is astonishing that the reports do not distinguish between the violation of one sort and the other. As to the case of usury, it was decided both by Lord Tabot and Lord Hardwicke, in the case of Bosanquet v. Dashwood [Id. 698, note], on a bill brought to compel the defendant to refund what he had received above principal and interest, that the surplus should be repaid." Lord Mansfield declared that he adhered to all the doctrine laid down in Smith v. Bromley, and the rest of the court concurred. The same distinction was enforced by Lord Mansfield in Browning v. Morris, Cowp. 790. These cases have the approval of Lord Chief Justice Ellenborough in Williams v. Hedley, 8 East, 378, and their authority is recognized in the courts of this country. Wheaton v. Hibbard, 20 Johns. 290; Thomas v. Shoemaker, 6 Watts & S. 183; 2 Story, Cont. §§ 672, 673; 2 Pars. Cont. 405. Brown v. McIntosh, 39 N. J. Law, 22, is directly in point, where it is held that at common law money paid usuriously may be recovered back, and that the common-law rule is not changed by our act concerning usury. If usury is shown, an action will undoubtedly lie to recover the sum paid in excess of the principal and legal interest.

On the trial of the cause, the court was requested by the counsel of the defendants to direct a verdict for the defendants on the ground that the transaction was a bargain and sale of the legacy for a valuable consideration by an assignment in writing under seal. This request was refused, and error is assigned upon exception taken at the trial. The contract is clear and unimpeached. There is no pretense that the plaintiff in any event was to be personally liable for the money advanced by the defendants, and suit could not be maintained by the defendants against the plaintiff if he had failed to collect the legacy. This essential characteristic of a loan is not present in the transaction. There is nothing in the case to show that it was an attempt to evade the usury laws. The trial court erred in not directing a ver dict for defendants, as there is an entire absence of evidence upon which a verdict for the plaintiff can be supported. The judg ment below should be reversed.

1. The statement in a declaration of the sum claimed as damages is a matter of form, and an amendment in that respect, if applied for at the trial, will be granted ex debito justitiae.

2. If the real question in controversy has been fully and plainly tried and correctly settled, the court, on error, will not reverse for an objection that might have been avoided by an amendment of the pleadings, but will itself exercise the power of amendment.

3. In a suit against an electric light company for damages received from the fall of one of its lamps, it appeared that the lamp, weighing 26 pounds, was suspended by a coarse onehalf inch rope, 1unning over an unprotected iron pulley; that, in lowering and raising it to replace the carbon points, the rope rubbed against the sheath to which the pulley was hung; that a rope so used lasted from three months to two years, and that it and the pulley were not suitable for such use; and that, after the lamp fell, the rope was found frayed out and unraveled for five or six inches from the end. Held, that the evidence of defendant's negligence was sufficient to go to the jury.

4. In a suit against an electric light company for the fall of one of its lamps, it was proper to allow one who was a practical electrical engineer, and another who was a mechanical engineer, and had put up lights of the kind in question, to testify as experts as to the imperfections of the contrivances by which the lamp was suspended.

5. In a suit against an electric light company for damage caused by the fall of one of its lamps, it was proper to charge that defendant's duty was to provide strong and sound rope and wire to securely hold the lamp, to furnish good pulleys, properly secured, and to have the rope properly run through such pulleys, and to have the lamp properly affixed to the rope, and that the occurrence of the accident raised no presumption of defendant's negligence, but that its liability depended upon whether it exercised reasonable care in keeping the lamp properly suspended and secured.

6. Matters of fact relating to the weight of evidence and the unreasonableness of the verdict cannot be considered by the supreme court on writ of error.

Error to circuit court, Hudson county; before Justice Lippincott.

Action by William Sweet against the Excelsior Electric Company for personal damages. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued June term, 1894, before BEASLEY, C. J., and DEPUE and VAN SYCKEL, JJ. Charles W. Fuller and H. B. Twombley, for plaintiff in error. Charles C. Black and Edward Kenny, for defendant in error.

DEPUE, J. Error is assigned upon the face of the record. The damages claimed in the declaration in the ad damnum clause were the sum of $1,000. The verdict awardThe verdict awarded the plaintiff $1,457, for his damages. For this discrepancy between the verdict and judgment thereon, and the declaration, it is contended that the judgment should be reversed. The cases cited by the counsel of the

plaintiff in error (Lake v. Merrill, 10 N. J. Law, 288, and Hawk v. Anderson, 9 N. J. Law, 319) were decisions on certiorari to the justice's court, and were made before the amendment act. The power of amendment conferred by this statute extends to the court in error, and will be exercised where no injury has been done to the party complaining by or through error in mere form. Insurance Co. v. Day, 39 N. J. Law, 89. The statement in a declaration of the sum claimed as damages is purely a matter of form, and an amendment in that respect, if applied for at the trial, would be granted ex debito justitiae. This power of amendment by the court in error extends to matters of substance, as well as of form. If the real question in controversy appears to have been fully and fairly tried and correctly settled, the court on error will not reverse for an objection that might have been avoided by an amendment of the pleadings, but will itself exercise the power of amendment. Ware v. Insurance Co., 45 N. J. Law, 177. This assignment of error must be disregarded.

The remaining assignments of error, 30 in number, were each based upon an exception taken at the trial. The number of these exceptions is due to the multiform manner in which the objections to the conduct of the trial were made and taken. An examination of these exceptions in detail is impracticable. A consideration of the subjects to which they relate will be the most advantageous method of ascertaining whether the substantial rights of the plaintiff in error were infringed upon by the trial judge in his rulings and instructions at the trial.

Briefly, the facts were these: The defendant, an electric light and power company, under competent legislative municipal authority, had set up an electric plant in the town of Harrison for the purpose of lighting the streets. One of its lights, an arc light and lamp, located on Harrison avenue, near the railroad bridge, was suspended over and above the street by means of poles, ropes, wires, and pulleys. The lamp was suspended over the street about 15 feet above the surface of the street, and projected out until it reached about the middle of the driveway. The plaintiff, a market gardener, on the 13th of May, 1892, between 9 and 10 o'clock in the morning, was passing along Harrison avenue to market with a load of produce. When he reached a point in the street over which the lamp was suspended, it fell, and struck his horse. The horse was frightened, and ran away, throwing the plaintiff from the wagon, whereby he was injured. The allegation in the declaration was that "the defendant, while it owned and controlled the said electric arc light and lamp, and the pole and ropes and pulleys by means of which the said electric arc light and lamp was hung and suspended, wrongfully, unjustly, willfully, and negligently permitted the ropes and pulleys by means of which the said

lamp was hung and suspended to be and become and remain rotten, weak, insufficient, and defective, by reason whereof the said electric arc light and lamp fell upon the horse of the plaintiff, and so frightened and startled the horse of the said plaintiff that the said plaintiff was injured by being thrown from his wagon," etc. To maintain the allegation of negligence, the plaintiff's testimony was directed to the condition and sufficiency of the ropes, the pulley, and the wires. When the plaintiff rested, a nonsuit was applied for; and, at the close of the case, application was made for a direction that there be a verdict for the defendant, on the ground that there was not evidence of negligence sufficient to enable the plaintiff to go to the jury. The denial of these application gave rise to exceptions on which the fourteenth and fifteenth assignments of error were based. The evidence was that the lamp, which weighed 26 pounds, and was suspended over the street, was held by a coarse-grained manilla rope, of three or four strands, and half an inch in diameter, running over an unprotected iron pulley; that, by means of this rope and pulley, the lamp was lowered and raised, from time to time, to replace the carbon points; that the rope, in running through the pulley, had friction against the sides of the sheath to which the pulley wheel was hung, and that it was only a matter of time before the rope must be replaced, or it would replace itself by being broken; that the life of such a rope with such use was from three months to two years. There was also competent evidence given by experts that a manilla rope, such as the one described, was not a proper and safe rope; and it was testified to that, immediately after the lamp fell, the rope was found loosened from the lamp, and frayed out and unraveled for five or six inches from the end. There was also evidence tending to show that the pulley, unprotected as it was, was unsuitable, and that the suspension wires used had not "the stoutness or durability to have a lamp like that hanging on it." The general rule is that the occurrence of an accident does not raise the presumption of negligence; but, where the testimony which proves the occurrence by which the plaintiff was injured discloses circumstances from which the defendant's negligence is a reasonable inference, a case is presented which calls for a defense. Bahr v. Lombard, 53 N. J. Law, 233, 21 Atl. 190, and 23 Atl. 167. Thus, in Byrne v. Boadle, 2 Hurl. & C. 722, the plaintiff, walking in the public street in front of the defendant's shop, was injured by a barrel of flour which fell upon him from a window above the shop. In Kearney v. Railway Co., L. R. 5 Q. B. 411, L. R. 6 Q. B. 760, the plaintiff, passing along the highway under a railway bridge of the defendant, was injured by the falling of a brick from the top of one of the pilasters on which one of the girders of the

bridge rested.

And in Mullen v. St. John, 57 N. Y. 567, a building which was in the course of erection by the defendant, fell into the street, and injured the plaintiff, who was passing by. In each of these cases it was held that from the happening of such an accident, in the absence of explanatory circumstances, negligence will be presumed, and the burden is upon the defendant of showing ordinary care. In Thomas v. Telegraph Co., 100 Mass. 156, the fact that a telegraph wire was found swinging across the highway at such a height as to obstruct and endanger ordinary travel, whereby the plaintiff's horses were injured, unexplained and unaccounted for, was in itself evidence for the jury on the issue of negligence on the part of the defendant. Other cases of like import are cited in Bigelow, Lead. Cas. 578, notes to Byrne v. Boadle; 1 Ruling Cas. 206, notes to Davis v. Sanders; Smith, Neg. 245-249; Pol. Torts, 422. The principle which controlled in these cases is a presumption of negligence "res ipsa loquitur,"-a phrase which, as was said by Mr. Justice Garrison in Bahr v. Lombard, imports that in each case there must be "something in the facts that speaks of the negligence of the defendant;" that is, that the thing which caused the injury was under the management of the defendant or his servants, and the accident was so unlikely to occur if proper care had been exercised as to justify an inference that it was due to some neglect of duty. See Scott v. Docks Co., 3 Hurl. & C. 596. It would seem within the principle upon which the cases cited were decided that the fall of a lamp of the weight of the lamp in question, suspended over a public street, without any explanatory evidence, would raise a presumption of negligence res ipsa loquitur, sufficient to put the defendant on the defense. But it is unnecessary to pursue this subject, for the judge expressly instructed the jury that no presumption of negligence of the defendant arose from the mere proof of the occurrence of the accident, and that the burden was on the plaintiff to prove the fact of its negligence ab extra; and there was sufficient affirmative proof in the evidence above referred to with respect to the inadequacy and insufficiency of the appliances by which the lamp was held to make a case of negligence on the defendant's part to go to the jury. jury. Those assignments of error are not sustained.

The assignments of error Nos. 1 to 13, inclusive, relate to the rulings of the judge admitting the evidence of Robert H. Burk and Henry Holtsman. Burk was an electrical engineer and electrician of considerable experience. He was 4 years with the United States Electric Light Company of Newark, 11⁄2 years with the United Illuminating Company of New York, 12 years with the Westinghouse Electric Manufacturing Company, 2 years with the Newark Electric Light Company, and for 19 months was the superintend