Cronan v. Armitage

• Decision Date: 28 March 1934
• Citation: 190 N.E. 12,285 Mass. 520
• Parties: CRONAN v. ARMITAGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 520

190 N.E. 12

CRONAN

v.ARMITAGE.

Supreme Judicial Court of Massachusetts, Essex.

March 28, 1934.

Exceptions from Superior Court, Essex County; Macleod, Judge.

Action of tort by Joseph J. Cronan against Francise H. Armitage. Verdict for plaintiff on each of three counts of the declaration in the sum of $6,500, and defendant brings exceptions.

Exceptions overruled.

S. H. Donnell, of Peabody, for plaintiff.

G. Karelitz, of Boston, for defendant.

RUGG, Chief Justice.

This is an action of tort brought to recover compensation for personal injuries received on February 27, 1927, by the plaintiff in the course of his employment by the defendant. The case was submitted to the jury on three counts. Allegations common to all counts are that the plaintiff was employed as a helper or assistant to a journeyman electrician and received injuries through the negligence of his employer, an electrical contractor, who was not a subscriber under the Workmen's Compensation Act. The negligence of the defendant alleged in count one is that he knowingly put the plaintiff at work in an unsafe and dangerous place, in count two that he failed to provide the plaintiff with safe and adequate tools and appliances for his work, and in count three that he permitted a dangerous current of electricity to pass through wiring and electrical equipment on which the plaintiff was working although the latter had asked that it be shut off. The defendant in his answer pleaded general denial, contributory negligence and assumption of risk by the plaintiff.

There was evidence tending to show these facts: The defendant was removing under contract certain electrical appliances from one building to another in Haverhill. The work was being done under the general supervision of the defendant, although he was absent on the afternoon of the injury. His only employees at the place of the injury were one Whitman, a journeyman electricial, and the plaintiff as helper. The plaintiff had been employed by various people in electrical work for about six years, had taken a part time course in electricity in the Wentworth Institute, and had failed to pass the state examinations for a license as journeyman. In the absence of the defendant Whitman was in charge, doing the work with the aid of the plaintiff, to whom he gave directions. On the wall of a corridor in the building was a meter board high above the floor. A metal cable, that could be coiled, containing three insulated wires, was held by a single clip at the top of the wall and then came down to the meter board and stopped just above the fuse blocks. One of each of the three wires went into each of the three fuse blocks. Whitman told the plaintiff to remove the three fuse blocks from the board. The plaintiff said: ‘Will I shut the power?’ Whitman answered: ‘No.’ The plaintiff knew that five hundred fifty volts were in the wires to be cut and would give a shock, but did not know that it would be dangerous to life and limb. He was given no warning of the danger. He had no rubber gloves. The defendant had no such gloves. Standing on a chair placed on a bench, the plaintiff cut off each of the three wires close to the fuse block. The wires, although insulated, when cut off exposed the center, which was alive. The cable with the three wires thus exposed at the bottom was left dangling and the ends pointed outward. The plaintiff undertook to turn the ends in and out of the way, as required, using his bare left hand. He turned one wire in and then tried to turn in a second. As he did this the cable swayed and apparently resumed its original coil, and two ends of wires came into the palm of the plaintiff's left hand a few inches apart. An arc formed; that is, the current went from one wire to the other through the hand. Severe injuries resulted. Turning off the switch to make these wires dead would have turned off the currents from other tenants in the building. A current of five hundred fifty volts of electricity was dangerous to life and limb. It was the custom in Haverhill at the time to turn off the switch to do such work and, if necessary, to do it at the noon lunch hour or after closing hours when the switch could be turned off without interfering with tenants. Removal of the fuse blocks would ordinarily take about two minutes. There was expert testimony to the effect that proper workmanship required that the current on these wires be turned off before the plaintiff worked on them, because otherwise there would be danger; that no one should be allowed to work on such live wires without being warned of the risks; that one working on live wires would be protected if he wore rubber gloves; that neither journeymen nor helpers carried rubber gloves in their kits; that an electrical contractor customarily carried a pair of rubber gloves and furnished them to the employee in the occasional instances where required; that because of the danger a helper should not have been directed to work on a live wire carrying five hundred fifty volts of electricity; that proper workmanship and the building code of Haverhill required that the metal cable should have been fastened to the wall by clips closer to the fuse blocks than it was; and that if this had been done there would have been less chance for the exposed ends of the live wires to make a contact through the hand of the plaintiff. Seemingly no exception was taken to the evidence.

At the close of the evidence and subject to the defendant's exceptions, a motion for a directed verdict in favor of the defendant was denied and certain requests for instructions were denied. The defendant excepted to portions of the charge. Separate verdicts for the same sum were returned in favor of the plaintiff on each of the three counts.

There was no error in the denial of the motion for a directed verdict. Since the defendant was not an ‘insured person’ under the Workmen's Compensation Act, the defences were not open to him that the injuries of the plaintiff were caused by his own negligence, or by the negligence of a fellow servant, or that the plaintiff had ‘assumed the risk of the injury.’ G. L. (Ter. Ed.) c. 152, §§ 1(6), 66. The only defence open to him was that his negligence did not cause the injuries of the plaintiff. Negligence in this connection means the failure to discharge some obligation or to fulfill a duty owed by the defendant to the plaintiff. It is the doing or omitting to do an act in violation of a legal duty or obligation. There can be no negligence when there is no duty. Minor v. Sharon, 112 Mass. 477, 487,17 Am. Rep. 122;Bernabeo v. Kaulback, 226 Mass. 128, 131, 115 N. E. 279;Bergeron v. Forest, 233 Mass. 392, 399, 124 N. E. 74;Seaboard Air Line Railway v. Horton, 233 U. S. 492, 504, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

The injuries to the plaintiff did not occur upon the premises of the defendant. They did not arise from an established and manifest method of doing business adopted by the defendant. The defendant as employer carrying out his contract within buildings owned by others still owed to the plaintiff as his employee the duty to furnish a reasonably safe place in which to work. This was a duty personal to the employer and could not be avoided by delegation to another. DeMarco v. Pease, 253 Mass. 499, 506, 149 N. E. 208;Garber v. Levine, 250 Mass. 485, 146 N. E. 21;McGonigle v. O'Neill, 240 Mass. 262, 133 N. E. 918;Ryan v. Fall River Iron Works Co., 200 Mass. 188, 192, 86 N. E. 310;Hopkins v. O'Leary, 176 Mass. 258, 264, 57 N. E. 342. There was ample evidence that a current of electricity such as here was shown in the wires was dangerous to life and limb, that it was the custom to do such work as that performed by the plaintiff only after the current was shut off, and that to take this precaution and complete the work would require only a brief time. The peculiar danger of handling wires charged with electricity is a factor to be weighed in passing upon the conduct of the defendant. Customary conditions under which work of that nature was usually done was proper for consideration on the issue of the negligence of the defendant. McCrea v. Beverly Gas & Electric Co., 216 Mass. 495, 498, 104 N. E. 365;Hecht v. Boston Wharf Co., 220 Mass. 397,...