Boutlier v. City of Malden

• Decision Date: 21 May 1917
• Citation: 226 Mass. 479,116 N.E. 251
• Parties: BOUTLIER v. CITY OF MALDEN. SAME v. MALDEN ELECTRIC CO. SAME v. SUBURBAN GAS & ELECTRIC CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 479

116 N.E. 251

BOUTLIER

v.CITY OF MALDEN.

SAME

v.MALDEN ELECTRIC CO.

SAME

v.SUBURBAN GAS & ELECTRIC CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 21, 1917.

Report from Superior Court, Middlesex County.

Actions by Bessie Boutlier, administratrix, against the City of Malden, against the Malden Electric Company, and against the Suburban Gas & Electric Company. There was verdict for defendant in each case, and the presiding judge reported the cases to the Supreme Judicial Court. Judgment ordered to be entered for defendant in the case against the City of Malden, and cases against the other defendants ordered to stand for trial.Whipple, Sears & Ogden, of Boston (Hugh W. Ogden and R. E. Tibbetts, both of Boston, of counsel), for plaintiff.

H. L. Boutwell, City Sol., of Boston, for defendant City of Malden.

Walter I. Badger and Louis C. Doyle, both of Boston, for defendants Malden Electric Co. and Suburban Gas & Electric Co.

CROSBY, J.

These are three actions to recover for the conscious suffering and death of the plaintiff's intestate who was killed on the evening of October 20, 1913, by reason of coming in contact with a wire charged with electricity. He will hereafter be referred to as the plaintiff. At the time of the plaintiff's injury and death he was seventeen years of age. Several years previously he had been legally adopted by the administratrix and her husband and lived with her at the time of the accident. At the conclusion of the evidence the presiding judge ordered a verdict for the defendant in each case and has reported the cases to this court.

The accident which resulted in the plaintiff's death occurred in the city of Malden, but whether at that time he was within the limits of a highway known as Lynn street or was outside the limits of the street, was in controversy between the parties. One Repetto, who was with the plaintiff at the time of the accident, testified ‘that they were walking in the center of the sidewalk; that it was a very dark night; that as they walked Ralph Boutlier said suddenly, ‘Oh, look at the fireflies; let's get some;’ that he gave about two steps, two short steps from where we were walking, then stooped down, I should say about a foot in the grass, two short steps from where we were walking.' This witness also testified that after the accident he saw a wire ‘that hung down on the near side of the third tree from the Moore house, the wire going across the sidewalk and the wind blowing it back and forth up against the tree,’ and that the wire struck him (the witness) on the overcoat after Boutlier fell and he got hold of it. It burned his hand, ‘tossed him right out in the middle of the street.’

The evidence showed that there was a line of poles with cross-arms and wires of various kinds thereon near the place of the accident; that the poles were owned by the Malden Electric Company, one of the defendants; that one of these poles, referred to as ‘B,’ was located in the town of Revere, a short distance from the line between Revere and Malden; that the pole referred to as ‘C’ was located in Malden; that the wire with which the boy came in contact had been attached to poles ‘B’ and ‘C’ and broke and fell to the ground some time before the accident, just when does not appear. This wire had formerly been a part of police telephone system belonging to the town of Revere. The top cross-arms on the poles to which the wire had been attached were owned by the town of Revere which had other wires upon these cross-arms; the wire that broke was a bare wire; there was evidence to show that it was corroded and eaten by rust and had fallen into disuse. On these two poles on cross-arms below the top cross-arms were strung wires of the Malden Electric Company, and also high-tension wires of the Suburban Gas & Electric Company carrying a high voltage of electricity. There was testimony that the wires between these poles were in part suspended directly over the sidewalk and over an unfenced space which for many years had been open to public travel. The police telephone wire with which the deceased came in contact had broken between poles ‘B’ and ‘C’ and had crossed one of the high-tension wires of the Suburban Gas & Electric Company. The evidence showed that the latter wire was not properly insulated; that it was old and weather beaten, the insulation worn off in places, and when wet could not properly insulate the current of electricity which passed through it. There was testimony that the town of Revere and the Suburban Gas & Electric Company had not received any legal permission to attach wires to poles at this point in Malden, and that the Malden Electric Company had not been lawfully authorized to erect its poles at this place in the town of Revere; in other words, there was evidence that there had been a violation by these companies of the ordinances of the city of Malden and of the town of Revere in the respects above recited. There was testimony tending to show that a proper inspection of the wire which broke and fell and of the wire with which it came in contact would have disclosed the fact that they were dangerous to persons traveling upon Lynn street or upon the open space.

1. An important question to be determined at the outset is whether the adopting mother of the plaintiff stands in the relation of his next of kin for whose benefit an action will lie by the administratrix for his death under R. L. c. 171, § 2, as amended by St. 1907, c. 375, and under R. L. c. 51, § 17, and acts in amendment thereof. The plaintiff, who was seventeen years old at the time of his decease, was legally adopted by the administratrix and her husband by decree of the probate court in the year 1900, and lived with her until his death.

R. L. c. 154, § 6, upon proper proceedings, authorizes the probate court to make decrees for adoption by which ‘except as regards succession to property, all rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between the child and the petitioner and his kindred, and shall, except as regards marriage, incest or cohabitation, terminate between the child so adopted and his natural parents and kindred or any previous adopting parent’; the exception ‘as regards succession to property’ is dealt with in the following section (section 7); manifestly the statutory right of an administrator to recover damages for the death of a person to the use of his surviving next of kin is not a right of succession to property. We are of opinion that under R. L. c. 154, § 6, the right of the adopting parent to recover for death under the statutes before referred to is the same as that of a natural parent in the absence of adoption; this court has held that the intent of these sections of the statute (sections 6 and 7) was to put an adopted child for all legal purposes, with certain exceptions, in the place of a natural child. Washburn v. White, 140 Mass. 568, 5 N. E. 813;Delano v. Bruerton, 148 Mass. 619, 20 N. E. 308,2 L. R. A. 698;Buckley v. Frasier, 153 Mass. 525, 27 N. E. 768. The effect of adoption is that the child so adopted is to be deemed the child of the parents by adoption to the full extent as if born to them in natural wedlock, and whatever legal consequences follow, the natural relation of child and parent thereafter exists between the adopted child and the adopting parent with the exceptions referred to in the statute, none of which applies to the case at bar. ‘Succession to property’ means succession under the laws regulating the descent and distribution of intestate property. Atty. Gen. v. Clark, 222 Mass. 291, 295, 110 N. E. 299, L. R. A. 1916C, 679;Bolinger v. Beacham, 81 Kan. 746, 106 Pac. 1094; Atchison, Topeka & Santa Fé R. R. v. Ryan, 62 Kan. 682, 64 Pac. 603. In a case recently decided by this court, it was held that under the workmen's compensation act, the adopting parent of a deceased employe stood in the relation of next of kin to such employé. Cowden's Case, 225 Mass. 66, 113 N. E. 1036.

2. There was evidence to show that the plaintiff had some knowledge of the dangerous qualities of electricity. Still, in view of his age, it could not be ruled that he was not in the exercise of as high a degree of care as would naturally be expected of a boy seventeen years old; we do not think as matter of law that he was negligent because upon this dark and stormy night he failed to see the wire lying in the grass, or because he mistakenly believed that sparks emanating from it were fireflies. We do not understand the defendants to contend that he took hold of the wire with knowledge of what it was, and that it was charged with electricity. The question whether he failed to exercise due care was a question of fact to be determined by the jury. The burden was upon the plaintiff to show such care affirmatively in order to recover. The presumption created by Statute 1914, c. 553, does not apply to this case because the cause of action occurred before the statute went into effect.

3. The evidence was conflicting whether the accident occurred within the limits of the highway or outside thereof. The witness Repetto testified that he and the plaintiff were walking in the center of the sidewalk and that the latter stepped about two steps and stooped down; that the plaintiff was about a foot in on the grass. There was also testimony that the street line at the place of the accident was about a foot from the edge of the grass on the inside of the sidewalk and that the latter was about eight feet in width. We are of opinion that the question whether the accident occurred within the limits of the highway or outside of it was for the jury. Upon the evidence, the plaintiff could have been found to be a traveler upon the highway. This brings us to a consideration of the question whether the action against the city of Malden should have been submitted to the jury. The declaration in that case...