Burr v. Massachusetts Elec. Co.
| Decision Date | 04 June 1969 |
| Citation | 356 Mass. 144,248 N.E.2d 492 |
| Parties | Harold C. BURR, Administrator, v. MASSACHUSETTS ELECTRIC COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James C. Donnelly, Jr., Worcester, for defendant.
Alexander C. Eggleston, Worcester (Kevin T. Byrne, Worcester, with him), for plaintiff.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.
The declaration in this action of tort contains a count for wrongful death and a count for conscious suffering of the plaintiff's intestate, Peter Burr. At the close of the evidence the defendant moved for a directed verdict on each count. The motion on the count for conscious suffering was granted; the motion on the wrongful death count was denied, subject to the defendant's exception.
The defendant's amended answer alleged in substance that Burr was an 'employee' of the defendant within the meaning of G.L. c. 152 (the Workmen's Compensation Act) because of his employment by an independent contractor, the F. A. Bartlett Tree Expert Company (Bartlett), which was engaged in work that was part of the trade or business of the defendant and that the plaintiff accordingly was not entitled to recover. However, when the judge instructed the jury on the count for wrongful death, he did not mention this affirmative defence of common employment, and gave no instruction relative to it. To this failure to charge, the defendant excepted. The jury subsequently returned a verdict for the plaintiff. The defendant's bill of exceptions challenges the trial judge's denial of the motion for a directed verdict on the count for wrongful death, the exclusion from evidence of the contract between Bartlett and the defendant, and the failure to instruct the jury on the defence of common employment. Since we are of opinion that the motion for a directed verdict on the wrongful death count should have been granted, we deal only with that issue.
We summarize the evidence as follows. The accident occurred in front of 30 West Main Street in Millbury about midway between pole 45 and pole 46. The poles and wires were located on the northerly side of West Main Street, which runs in a westerly direction from the center of Millbury. The locus of the accident was one-half mile west of the center of town. On West Main Street the houses were 100 feet apart and set back thirty to fifty feet from the road, but to the west of the locus the distance between houses increased to 200 to 300 feet. To the south of the houses on the south side of West Main Street there were fields and woods for approximately one-half mile. In the rear of the houses on the north side were other houses which fronted on a different street, Elmwood Street.
Between poles 45 and 46 there were seven wires owned and maintained by the defendant and two fire alarm wires owned by the town. The defendant's wires occupied two levels, four on the top and three below. The three wires on the lower level were referred to as 120/240 volt wires; two of them were energized while the middle one was neutral. These three wires were almost three feet above the two fire alarm wires.
Only a small proportion of the wires in Millbury were insulated. None of the wires running from pole to pole in the one-half mile from the scene of the accident to the center of Millbury was insulated. The defendant's wires, which apparently were installed prior to 1940, had once been covered with weatherproofing which had worn away. Weatherproofing is intended to provide a corrosion-proof covering rather than insulation.
There were a number of trees growing along various parts of the defendant's system and some of these trees had to be trimmed to prevent their interfering with the wires. The defendant contracted out about ninety-five per cent of this trimming. An arborist employed by the defendant supervised the work so as to insure the quality of the trimming. If he did not approve of the...
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