161 Mass. 558 (1894), Hector v. Boston Elec. Light Co.

Citation:161 Mass. 558, 37 N.E. 773
Opinion Judge:FIELD, C.J.
Attorney:[37 N.E. 773] Sherman L. Whipple and William M. Noble, for plaintiff. E.W. Burdett and Charles A. Snow, for defendant.
Case Date:June 22, 1894
Court:Supreme Judicial Court of Massachusetts

Page 558

161 Mass. 558 (1894)

37 N.E. 773




Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1894


[37 N.E. 773] Sherman

Page 559

L. Whipple and William M. Noble, for plaintiff.

E.W. Burdett and Charles A. Snow, for defendant.



The exceptions in this case, as amended, were allowed by the presiding justice of the superior court, if it was within his authority and discretion to allow them; otherwise, they were disallowed. The original draft of the exceptions was filed on February 20, 1892, within the time allowed. In

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April following, the counsel of both parties were heard upon the allowance of the exceptions. The plaintiff's counsel then asked that they be disallowed, which the justice at that time declined to do; but he suggested that the counsel confer together, and that the plaintiff's counsel point out what changes they thought should be made. This was [37 N.E. 774] done, and the draft of the exceptions was altered, and some things added to it, with the consent of the counsel of the defendant, who, however, did not admit that all such alterations and additions were necessary. The plaintiff's counsel did not waive their objections to the allowance of the amended draft, but contended that it was substantially a new bill of exceptions, made up and filed after the time prescribed by the statute for filing exceptions has passed. Copies of the exceptions have been furnished us, showing the difference between the bill as originally filed and the bill as amended. The excepting party has a right, if he chooses, to stand upon his exceptions as originally filed, and to prove the truth of them, if they are not allowed. The extent to which errors in such exceptions can be corrected on a petition to prove the exceptions was considered in Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010; 29 N.E. 525. The extent to which the presiding justice can allow the excepting party to amend his bill of exceptions has not been determined. In such a case as this is, where many questions of law were raised at the trial, one of which was that upon all the evidence the plaintiff could not recover, it is hardly possible that the original draft of the exceptions, without any change, would be entirely acceptable to either the presiding justice or to the other party. The other party, under the statute, has a right to be heard upon the allowance of the exceptions; and the practice has been to permit the excepting party, if he chooses, with the consent of the presiding justice, to amend his exceptions so as to state more accurately and completely the questions of law which were raised at the trial, and included in the bill of exceptions as filed. It is true that the presiding justice is not required by law to allow any such amendments, but his power to allow amendments is undoubted. Perry v. Breed, 117 Mass. 155. They cannot be allowed without the consent of the excepting party, but with his consent they can be; certainly, so far as is necessary

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to make the exceptions conformable to the truth, and the whole truth, with reference to the questions of law raised at the trial, and included in the original bill of exceptions. We have no occasion to consider, in this case, whether a distinct exception taken at the trial, and omitted from the bill as filed, by accident or mistake, can be added by an amendment to the original draft after the time has expired for filing exceptions. In the present bill, we think that the amendments allowed by the presiding justice with the consent of the defendant were such as were within his power and discretion to allow.

The plaintiff was a lineman of the New England Telegraph & Telephone Company, and went upon the roof of the building No. 41 Temple place, Boston, called the "Youth's Companion Building," for the purpose of affixing a telephone wire to a standard erected upon the roof of the building No. 45 Temple place, which adjoined No. 41 on the side towards Washington street. It was intended that this wire should run from West street to this standard, and thence should swerve slightly towards Washington street, and pass across Temple place. He was injured, while on the roof of No. 41, by his left hand coming in contact with a wire belonging to the defendant, through which an alternating electric light current was being transmitted. This electric light wire ran over the southeasterly corner of the building on which he was, and at the point where the plaintiff's hand came in contact with it was about 25 feet from the corner. The wire formed one side of an alternating electric light circuit; the other wire of the circuit running parallel with it, and at a distance of 17 1/2 inches from it. No wires of any kind were attached to the roof of No. 41 Temple place; and the roof was clean, smooth, and unobstructed by anything except a scuttle near the back part of it, a skylight near where the plaintiff fell, and two or three other skylights, near the rear of the roof. The roof of the building No. 45 Temple place was about 20 feet below the roof of the building No. 41, and each was a flat, or nearly flat, roof. Near the center of the roof of No. 45, the defendant, which is a corporation engaged in the business of furnishing electric light and power in the city of Boston, had erected a standard about 25 feet

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in height, on which were three cross-arms, running horizontally and at right angles with the line of Temple place. This standard was used for the purpose of supporting various wires which were attached to it, and ran from it to two other fixtures on the other side of Temple place. The highest cross-arm was about 5 feet long, and had on it four glass insulators, placed 17 1/2 inches apart, attached to which were four arc electric light wires. The next lower cross-arm was placed 2 feet below this, was...

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