Clough v. New England Tel. & Tel. Co.
| Decision Date | 07 February 1961 |
| Citation | 172 N.E.2d 113,342 Mass. 31 |
| Parties | Irene Lucciardi CLOUGH, administratrix, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY. Irene Lucciardi CLOUGH, administratrix, v. NEW BEDFORD GAS AND EDISON LIGHT COMPANY. Ambrose KNIGHT v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY. Ambrose KNIGHT v. NEW BEDFORD GAS AND EDISON LIGHT COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Leon F. Sargent, Boston, for New England Tel. & Tel. Co.
William J. Fenton, Taunton, for New Bedford Gas & Edison Light Co.
Charles R. Desmarais, New Bedford, for plaintiffs.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.
These are four actions of tort to recover for the conscious suffering and death of James Lucciardi and for personal injuries to Ambrose Knight, sustained when an electric current ran from a high voltage wire to a cable of a crane with which they were working. Knight and Irene Lucciardi Clough, administratrix of the estate of James Lucciardi, each bring an action against the New Bedford Gas and Edison Light Company (light company) and the New England Telephone and Telegraph Company (telephone company). In a trial to a jury verdicts were returned for the administratrix of Lucciardi against each defendant on the death counts alleging negligence. Verdicts were likewise returned for Knight against each defendant on counts for negligence. The cases come here on the defendants' exceptions to the denial of their motions for directed verdicts.
The relevant evidence was as follows. In 1951 and 1952 an overpass at Copicut Road in the town of Freetown was being built over the Boston-Fall River Expressway. In December, 1951, two poles which were jointly maintained and used by the defendants were moved from the northerly side of Copicut Road to a point near a temporary road that was being used for public travel during construction of the overpass. In June or July of 1952, at the request of the Commonwealth's assistant resident engineer (Keating), the telephone company moved the poles to permanent locations designated by Keating on the northerly side of the overpass, one about twenty-five feet east of the easterly abutment of the overpass, and the other about twenty-five feet west of the westerly abutment. The span of the overpass was about 210 feet and the distance between the poles was about 270 feet. Between July 29, 1952, and August 1, 1952, the light company attached two uninsulated copper wires bearing a current of 4,400 volts to cross arms on the tops of the poles. The cross arms were twenty-eight feet three inches above the surface of the overpass. The sag of 268 feet of the wire would be between one and two feet. No danger or warnings signs were attached to the poles. An engineer of the light company was on the scene in June or July, 1952, and it was apparent to him that construction in the vicinity of the overpass was not finished. A rule of the light company required its employees to report to their supervisors the conditions of the areas where high voltage wires were to be installed, but no such report was made here.
The masonry work on various overpasses on the expressway (including the Copicut Road overpass) was let out by the general contractor to one Paltrineri as subcontractor. This work involved the placing of coping stones (facing or ornamental stones) 'on the outside of * * * [the] bridge.' The coping stones 'had to go on the overpass before the general contractor could pour the sidewalls.' On September 8, 1952, Paltrineri brought his crew and equipment (which consisted of a mobile crane mounted on a chassis) to the Copicut overpass. The general contractor 'was anxious to get his part of the job done so he was after Paltrineri to get * * * [a] particular stone [weighing 350 pounds] in * * *.' Paltrineri's crew consisted of Cronin, who operated the crane, Knight, Lucciardi, and three others. The crew was using this crane to place the coping stones in position. The men would guide a stone to its proposed position and the crane operator would lower the stone into place by loosening the cable. The crane had a boom fifty feet in length, the radius of which 'could be lowered or raised by moving levers.' All members of the crew were experienced men 'who had worked around construction work and they had seen where you have to avoid electric wires.' Before the work began on September 8, Paltrineri noticed that the overhead wires 'seemed to be directly over the place where the stones were to be set * * * [and thought] that i would be impossible to set the stones in a normal manner with a high boom without touching the wires.' Accordingly, he instructed the crew to use a 'flat boom' in 'spotting the stones.' Knight testified in substance that this warning was given by Paltrineri. There was evidence that Lucciardi was present when it was given, but there was also evidence that he did not arrive on the job until after it was given. Cronin, the operator of the crane, recognized the danger in operating a crane in the vicinity of highly charged wires and warned the crew to 'watch the wires.'
At the time of the accident Lucciardi, Knight, and Anthony Cedrone were guiding a 350 pound stone into position. The stone was attached to a chain which was hooked onto the end of the steel cable of the crane that extended from the pulley located at the top of the boom. The crane operator was moving the stone with a 'flat boom' to get under the wires, which were not more than twenty-five to thirty feet about the overpass. 1 The chassis was in the center of the overpass and the tip of the boom, pointed in a northwesterly direction, was about five feet south of and about twelve feet higher than the wires that extended along the north side of the overpass. When the accident occurred the boom was in a 'stopped locked position' and had been stopped for 'a matter of seconds.' Lucciardi was standing at the center of the stone, flanked by Knight and Cedrone. Lucciardi gave the crane operator a hand signal to lower the cable. As the men maneuvered the stone into position the electric current arced from a wire to the cable, knocking the three men to the ground. Knight was injured, and Lucciardi sustained injuries which resulted in his death.
When the men fell, the crane operator saw that the cable was not more than twelve to fourteen inches from the wire and that an arc of electricity extended from the wire to the cable. 2 The boom was still about five or six feet from the wires.
Both defendants contend that the evidence failed to establish negligence as matter of law, that Lucciardi and Knight were guilty of contributory negligence, and that they assumed the risk of the accident. The telephone company also contends that it was not responsible for injuries caused by the electric company's wire. The initial question is whether there was enough evidence of negligence to go to the jury. The electric company, of course, was not an insurer. It was required to exercise care that was reasonable in the circumstances. But inasmuch as electricity is a highly dangerous force, those employing it are properly held to exercise care that is commensurate with the risk. Edgarton v. H. P. Welch Co., 321 Mass. 603, 610, 74 N.E.2d 674. See O'Donnell v. Boston Elev. Ry., 205 Mass. 200, 202, 90 N.E. 977. In situations similar to that here, liability or nonliability is normally not based on any single act or omission of the power company, although special attention has been given to a few...
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