Bernier v. Boston Edison Co.

• Decision Date: 11 April 1980
• Citation: 380 Mass. 372,403 N.E.2d 391
• Parties: Arthur BERNIER, Jr. v. BOSTON EDISON COMPANY (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 391

403 N.E.2d 391

380 Mass. 372

Arthur BERNIER, Jr. v. BOSTON EDISON COMPANY (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 7, 1980.

Decided April 11, 1980.

James D. Casey, Boston (Louis N. Massery, Boston, and Arthur L. Johns, Wellesley, with him), for the Boston Edison Co.

George A. McLaughlin, Jr., Boston, for Arthur Bernier, Jr.

John A. Donovan, Jr., Wellesley (Thomas D. Burns, Boston, with him), for Patricia J. Kasputys.

Before QUIRICO, BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

About 2:30 P.M., May 24, 1972, the plaintiffs Arthur Bernier, Jr., and Patricia J. Kasputys, then eighteen and fifteen years old, were let out of school and, after going to Kasputys's house, sauntered to an ice cream parlor on Massachusetts Avenue in Lexington Center, one of the town's major shopping areas. A half hour later, Alice Ramsdell entered her 1968 Buick Skylark automobile parked, pointed east, on the south side of Massachusetts Avenue (which here runs west-east), in the last metered space about fifteen to twenty feet short of where the avenue meets Muzzey Street, a one-way street beginning at the avenue and running south. No traffic signals were posted at the junction with Muzzey Street.

As Ramsdell started her car, she noted, checking her rear-view and side-view mirrors, that there was a car later identified as a Cadillac convertible driven by John Boireau some seventy-five feet behind her. She wanted to make a right turn on Muzzey Street. Just before pulling out, Ramsdell observed that the Cadillac was much closer to her than before. Boireau, too, wished to turn right onto Muzzey Street. As there were no cars ahead of her before the intersection, Ramsdell thought she could make the turn before the Cadillac interfered.

As Ramsdell was pulling left slightly away from the curb, Boireau passed her traveling (as he said) about five miles an hour. Whether Ramsdell's car then "bolted" out and struck Boireau's car as he was negotiating the right turn, or Boireau turned into Ramsdell's car as the two attempted to make the turn, was the subject of conflicting testimony. So, too, the estimates of Ramsdell's speed on impact with Boireau varied from five to thirty miles an hour. Both drivers said they recognized the trouble and braked, but not before a minor collision occurred some ten to fifteen feet into Muzzey Street intersection, Boireau's right front fender being slightly dented by contact with Ramsdell's left front fender.

What might have been a commonplace collision turned into a complicated accident. On impact, Ramsdell, a woman of sixty-nine, hit her head against her steering wheel and suffered a bloody nose. She testified she "lost complete control of that car." Dazed, she unknowingly let her foot slip from the power brake to the gas pedal. In the result, after veering right around Boireau's car and perhaps slowing slightly, she accelerated across the remaining twenty feet of Muzzey Street, bounced to the south sidewalk, about nine feet wide, of Massachusetts Avenue, and moved about fifty-five feet down the sidewalk. On this passage the car scraped the front of a camera store, hit and levelled a parking meter, struck and damaged extensively the right rear section of a Chevrolet Chevelle automobile (the third parked car beyond Muzzey Street), knocked down an electric light pole owned by the defendant Boston Edison Company (Edison), and struck the plaintiffs who had left the ice cream parlor and were walking side by side west, into the face of the oncoming car. There was much confusion at trial whether, after hitting the meter and car, Ramsdell first hit the pole and then the plaintiffs, or first the plaintiffs and then the pole, but no one denied she hit all three. The car came to a stop two to three feet over the stump of the pole with its left wheels in the gutter and its right wheels on the sidewalk, and in contact with the Chevelle.

The electric light pole, when hit, fell away from Ramsdell's car toward the east, struck a Volkswagen automobile parked along Massachusetts Avenue (the fourth car from Muzzey Street), and came down across the legs of Bernier. Boireau was able with help to lift the pole off Bernier. Bernier's thighs and left shin bone were broken, the latter break causing a permanently shortened left leg; and he had other related injuries. Kasputys lay within two feet of the pole further in from the curb than Bernier. There was no eyewitness testimony that she had been struck by the pole. She was unconscious and vomiting. She suffered a skull fracture on the right side of her head where pieces of metal and a length of wire were found imbedded, and developed permanent pain in her left lower leg.

Bernier in 1972 commenced two actions against, respectively, Ramsdell and Boireau; and in 1974 a separate action against Edison. Kasputys commenced in 1972 an action against Ramsdell and Boireau, and in 1974 added Edison as a party defendant to that action. ² These complaints alleged against Edison that it had negligently designed, selected, constructed, and maintained the pole at Lexington Center. The cases were consolidated for trial.

The principal witnesses called by the plaintiffs were physicians who testified (orally or through deposition) about the agreement of the injuries with the plaintiffs' theories of how they were caused; two engineers and two supervisors from Edison's staff, responsible for various aspects of the design and maintenance of electric light poles, who were examined on issues of the company's alleged negligence; and a structural engineer, testifying largely as an expert in concrete design. Also called was a police investigator.

For the defendants: Ramsdell testified in her own behalf. Boireau's estate (he had died from unrelated causes) called three eyewitnesses to the accident; also Boireau's widow, who testified to certain statements by Boireau shortly after the accident. Testimony by Boireau at a District Court hearing was read in evidence. Edison cross-examined, but offered no witnesses.

The jury returned verdicts clearing Boireau but holding Ramsdell and Edison liable. Only Edison appealed, and we transferred the case here on our own motion. The company contends: (A) There was insufficient evidence for a jury to find with reason (1) that the pole was negligently designed, selected, constructed, or maintained, or, (2) even if Edison was negligent in some way, that the negligence "caused" the plaintiffs' injuries. Some evidentiary errors are claimed along the way. ³ Hence the judge should have allowed the company's motion for a directed verdict or judgment notwithstanding the verdict. (B) Certain of Edison's requested instructions, including those about nonrecognition of tort recoveries under the income tax laws, were erroneously denied; accordingly the company's motion for a new trial, alternative to judgment n. o. v., should have been allowed. (C) Interest was calculated erroneously on the Kasputys recovery, and corrective post-judgment motions should have been allowed. We hold there was no error.

A. Refusal of Directed Verdict and Judgment n. o. v. 1. Negligence issues. The plaintiffs did not claim that an otherwise acceptable pole had been rendered dangerous through damage (cf. Tritsch v. Boston Edison Co., 363 Mass. 179, 293 N.E.2d 264 (1973)), or that a well designed pole had been carelessly constructed. Rather the gravamen of the plaintiffs' case, as it appeared at trial, was that Edison had failed through negligence to design a pole that was accommodated reasonably to foreseeable vehicular impacts so as to avoid pedestrian injuries, and that the continued use of the pole created an unreasonable risk of such injuries.

But first, was Edison responsible for the design and use of the pole? a prerequisite to being held liable for acting unreasonably in these respects. See Smith v. Ariens Co., --- Mass. ---, --- - --- ^a, 377 N.E.2d 954 (1978). Tritsch v. Boston Edison Co., supra at 181, 293 N.E.2d 264.

(a) A jury could find that Edison was the primary designer of this "No. 6" pole as far as appears, the town had no involvement in the design. It was the task of Edison engineers in the "Technical Methods Division" to draw up "material specifications" for this kind of pole. The company specified the dimensions, material, weight, connectors, static load requirement (weight of the suspended light or luminaire and attaching bracket), base attachments, and perpendicular force (in terms of high winds) that the pole must withstand at its top. After approval by heads of relevant departments to assure that the poles would provide sufficient lighting and could be easily installed by company crews, the specifications were sent to the manufacturers. (Specifications for the No. 6 pole had been thus approved.) In turn the manufacturers drew up more detailed production designs which were sent to Edison for approval. Suggestions by the company would be incorporated and production would begin. The No. 6 type of pole was "codesigned" by the company (according to the head engineer in the Technical Methods Division) and built by American Concrete Corporation.

(b) Control of the poles in place was also substantially vested in the company. It admitted through interrogatories read in evidence that it "own(ed) or maintain(ed)" the No. 6 pole in question. While the town chose the location of the poles, it was the company that required they be placed only twelve inches from the curbing. Edison had a regular crew which circulated among the street lights installed by it to check for failed lights or other defects. Edison would also respond to calls from the police or citizens, send out a crew, and repair or replace the poles. Replacement poles were decided upon by Edison supervisors looking in a "street lighting book" furnished by the company, and the chosen poles were retrieved from Edison inventory and installed by...