Butterfield v. Cmty. Light & Power Co. Inc.
| Decision Date | 06 November 1946 |
| Docket Number | No. 84.,84. |
| Citation | 49 A.2d 415 |
| Court | Vermont Supreme Court |
| Parties | BUTTERFIELD v. COMMUNITY LIGHT & POWER CO., Inc. |
OPINION TEXT STARTS HERE
Exceptions from Addison County Court; Blackmer, Presiding Judge.
Action by Floyd I. Butterfield, administrator of the estate of Reginald W. Butterfield, against Community Light & Power Company, Inc., to recover for the death of plaintiff's intestate caused by the wrongful act of defendant. A verdict and judgment were entered for plaintiff, and the case came before the Supreme Court on defendant's exceptions.
Judgment affirmed.
Lawrence & O'Brien, of Rutland, for plaintiff.
Wayne C. Bosworth, of Middlebury, for defendant.
Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
This is an action to recover damages for the death of the plaintiff's intestate, a boy of the age of 10 years 7 months, caused, it is alleged, by the wrongful act of the defendant. The next of kin, for whose benefit the action was brought are the plaintiff and his wife Margaret, parents of the deceased. Verdict and judgment were for the plaintiff in the sum of $6500 and the case is here on the defendant's exceptions.
It appears that on May 22, 1945, a line of poles extended along the highway upon which the plaintiff's premises abutted. Upon the plaintiff's land and a short distance from his farm buildings there was an old decayed elm tree, some of whose limbs overhung wires carried on these poles. At that point there were four wires owned and used by the defendant, two of which, attached to cross arms near the tops of the poles, carried an electrical current of about 2200 volts. The other two, some distance below these, were low tension wires by means of which a current of about 110 volts was furnished to the plaintiff's milk house and other buildings. On the date named a large limb fell from the elm tree, breaking one of the high tension wires which lodged upon the low tension wires below. Shortly afterwards the body of the deceased was found in the milk house under circumstances indicating that he had been electrocuted by contact of a metal pail that he carried with the metal milk cooling tank.
The finding of negligence on the part of the defendant, implied by the verdict, is not challenged. One contention of the defendant, raised by exception to the denial of its motions for a directed verdict and to set aside the verdict, is that the beneficiaries were guilty of contributory negligence as a matter of law in knowingly permitting the limb, which for a long time had been rotted and insecure, to remain and in not removing it. It is also contended that the beneficiaries assumed the risk of the injuries complained of.
In an action by an administrator under our statute to recover ‘such damages as are just’ for the benefit of the parents, as next of kin, for the death of a child by wrongful act, the action being in the right and interest of the parents, their negligence, proximately contributing to the injury, bars recovery. Ploof v. Burlington Traction Co., 70 Vt. 509, 41 A. 1017, 43 L.R.A. 108. It is the duty of an abutter to keep his property from becoming a source of danger to the traveling public by reason of any defect either in construction, use, or repair, so far as the exercise of the care of a prudent man can guard against the same. Murray v. Nelson, 97 Vt. 101, 107, 122 A. 519; 45 C.J. 839, § 251. Assuming that this general rule is applicable here, even though the person injured was not a traveler but was situated as was the deceased, we come to the question whether there was evidence tending to show that the plaintiff exercised the care of a prudent man.
There can be no doubt that the plaintiff knew of the condition of the tree and its branches. It stood by itself some 200 feet from his horse barn. The evidence is not disputed that on two prior occasions limbs falling from this tree had broken a high tension wire and an end had fallen to the ground. No damage appears to have resulted except that on the first occasion the grass had been set on fire. On the second occasion a passerby had thrown the wire out of the road. Each time employes of the power company came up later and spliced the broken wire. The first occasion was about the summer of 1942 and the second about one year later. On the second occasion their attention was called to the condition of the tree and they asked the plaintiff if they might cut it. He told their foreman that he would be glad to have them do so and that he would help take it away after it was cut. They chopped a scarf in the tree but decided that their saw was too short to cut the tree and left it. Nothing further was done about felling the tree. On each occasion when the wire fell the plaintiff called the defendant and told the girl in the office about it. No suggestion was made that he cut the tree and he couldn't do it without someone to supervise. When the saw the wire down and burning the grass he knew that anyone would be apt to get a severe shock from it. The plaintiff knew absolutely nothing about handling high tension wires. If he had attempted to cut the tree the limbs might have fallen on the high tension wires. He testified that he wouldn't have dared try it. There was evidence tending to show that by proper ground connections the fatal current of high voltage electricity could have been prevented from entering the milk cooling tank.
On the question whether there was negligence on the part of the plaintiff it is material to consider the consequences that a prudent man might reasonably have anticipated from his actions or failure to act. Perkins v. Vermont Hydro-Electric Corporation, 106 Vt. 367, 381, 177 A. 631; Woodcock's Adm'r v. Hallock, 98 Vt. 284, 290, 127 A. 380. Does the evidence establish that the plaintiff, as a prudent man, should have anticipated more serious consequences than a grass fire or a serious shock to one coming in contact with the fallen wire and should he have taken precautions against the danger other than those he did take? Certainly notifying the defendant of the fall of a limb as soon as he learned of it, permitting and requesting its foreman to remove the tree and offering such help as he was able to give were the natural first steps to be taken. When those steps failed to result in the removal of the tree, it could not be claimed that he should incur the risk of trying to remove the tree himself. He made repeated requests and demands on the defendant to do so. The defendant was fully informed of the situation and had knowledge of the hazard which it may be inferred the plaintiff did not have. A trivial circumstance had prevented the defendant from completing the removal of the tree after starting to remove it. A long delay followed, but the fact of the delay may have lulled the plaintiff into the belief that safeguards against any serious damage existed of which he had no knowledge and that further demands upon the defendant for the removal of the tree were unnecessary.
Nothing is shown tending to connect the other beneficiary, Mrs. Butterfield, with the accident except that she had lived on the farm with her husband for some four years. It cannot be inferred that she had any greater knowledge of the situation or any better opportunity to take precautions against injury than he had. If the evidence tended to exonerate him...
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