Derosier v. New England Tel. & Tel. Co.

• Decision Date: 26 January 1925
• Citation: 130 A. 145
• Parties: DEROSIER v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Court: New Hampshire Supreme Court

130 A. 145

DEROSIER

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Court of New Hampshire. Merrimack.

Jan. 26, 1925.

On Motion to Limit Order Setting Aside Verdict to Issue of Liability.

Transferred from Superior Court, Merrimack County; Branch, Judge.

Action by Eva Derosier, administratrix, against the New England Telephone & Telegraph Company. Verdict for plaintiff, and case transferred on defendant's exceptions to evidence to the charge and refusal to charge, and to the denial of its motions for a nonsuit and for a directed verdict. Exception to charge sustained, and other exceptions overruled. New trial granted.

Case for negligence. Plaintiff's intestate, Albert Derosier, an employee of the Manchester Traction, Light & Power Company, was electrocuted while climbing a pole owned and used in common by his employer and the defendant. The pole was situated upon the westerly side of Arlington street and the northerly side of Williams street, at their junction. The pole was originally owned by the defendant, but had for some years been used by both companies. Prior to the accident the pole had become joint property by a written agreement, under which the defendant had assumed the maintenance of the pole, and each party had agreed "to place, maintain and be solely responsible for its cross arms, fixtures, and wires, and for the electric currents employed by it in the conduct of its business, and for any damages to persons or property due solely to its act or neglect. * * *"

At the time of the accident the defendant maintained upon this pole two cables, each supported by a messenger wire. The cable here more particularly involved, and known as No. 1, extended north and south on Arlington street and was attached to the pole on the street side by a suspension bolt at a point 21 feet from the ground. The other cable known as No. 2, which was parallel to and one foot above cable No. 1, came south on Arlington street and dead-ended at an eye-bolt on the north side of the pole, where it turned westerly to Williams street. Each cable was inclosed in lead coverings about the size of a garden hose, and was suspended by metallic clips, about an inch below its messenger wire. The messenger wires and cables were grounded. These fixtures were thus maintained before joint ownership. The defendant had no cross arms, and no other wires or fixtures upon the pole.

The traction company maintained upon the pole (1) a double cross arm 8 feet long and extending east and west, which carried upon its easterly end, and some over 4 feet above the defendant's lower cable, power wires charged with 2,300 volt electric current; (2) a single cross arm, parallel to this double arm, but 2 feet higher, supporting wires carrying secondary lighting circuits of 110 volts and arc light circuits of some 3,000 volts; (3) a buck arm, extending north and south, 2 mches below the single arm, and supporting wires deflected to Williams street; (4) a mast arm 12 feet long, attached to the pole about 2 feet above the defendant's lower cable, and extending in a southeasterly direction, held in place by guy wires from the pole, and itself supporting at its outer end an arc light in a position to light both streets. These guy wires contained no insulators. Under the terms of its contract with the defendant, the traction company was required to insert a strain insulator in every guy upon jointly used poles at a point from 6 to 8 feet horizontally distant from the pole.

About 2 feet above the traction company's upper cross arm was an arm occupied by the city with police and fire alarm wires. Upon the northerly and southerly side of the lower portion of the pole there were iron pins at a distance of approximately 18 inches apart, alternately placed for use in climbing, the uppermost pin being between 2 and 3 inches below the defendant's cable. Derosier was equipped with climbing irons or spurs, and it could be found that he was an experienced lineman. He had formerly been in the defendant's employ. The night before the accident, Derosier, with a fellow lineman in charge of the work, had traced a "ground" to the vicinity of the pole. Believing that the trouble was due to a cross in the are and the secondary 110-volt wires leading from the buck arm down Williams street, Derosier started to ascend the pole, planning to pass above the defendant's cable to a position where he could get a better view of the proximity of the suspected wires. He ascended the pole from the street side, and while swinging into climbing space on the south side of the pole grasped the cable with his left hand and the mast arm with his right, receiving through his body a 2,300-volt current which, had escaped to the mast arm from the traction company's power circuit through contact with one of its guys supporting the arm. Other facts will appear in the opinion.

Trial by jury and verdict for the plaintiff. Transferred upon the defendant's exceptions to evidence, to the charge, to refusal to charge, and to the denial of its motions for a nonsuit and for a directed verdict.

Robert W. Upton, Peter J. King, John M. Stark, and Edward C. Niles, all of Concord, for plaintiff.

Drew & Carr and Pitt F. Drew, all of Boston, Mass., for defendant.

SNOW, J. I. It was the plaintiff's contention at the trial that injuries to a lineman by coming in contact with the defendant's telephone cable and the traction company's electricity were naturally to be apprehended from the usual and ordinary method of doing a lineman's work, and that therefore it was the defendant's duty to provide against that danger by installing a guard arm above the cable with which Derosier came in contact. In support of this position the plaintiff relied upon a printed rule adopted by the defendant, and upon a similar provision in its contract with the traction company for the use of joint poles. Each provided for the maintenance of guard arms above the defendant's cables under circumstances therein prescribed. Reliance was also placed upon the earlier custom of the defendant to maintain such guard arms, of which it was claimed the rule and contract simply gave written expression.

There was evidence from which it could be found that, for some 12 or 15 years prior to the accident, whenever the defendant's cables were attached directly to jointly used wooden poles within 6 feet below electric light wires supported by the same pole, it was the defendant's practice to maintain guard arms, parallel with, and three-fourths of an inch to an inch above, the suspension wires supporting its cables. These arms, 4 feet long, 4 inches thick, 3 1/2 inches wide, were fastened to the pole by lags or bolts. The year last preceding the accident the defendant put into effect rules for the construction and maintenance of jointly used wooden pole lines, a material portion of which reads:

"Where a suspension wire, carrying class C cable or wires, is attached directly to the pole, and the suspension wire is less than 72 inches below the lowest class B attachment in the class B space, a wooden guard arm shall be attached to the pole immediately above and substantially parallel to such suspension wire. The guard arm shall be at least 48 inches in length and shall be securely fastened to the pole. On corner poles, where the cable turns, the guardarm shall be placed along the climbing side of the pole."

The defendant's cable and wire were of class C, and the light company's wires above were class B, attachments. Contemporaneously with the adoption of these rules the defendant entered into a written agreement with the light company, a material provision of which reads:

"Where the messenger wire is below the electric light lines, it shall be placed upon the pole at a vertical distance of not less than four feet below the lowest cross arm occupied by the lighting company. Where the messenger wire is below the electric light lines, and at a distance not exceeding six (6) feet from the lowest cross arm carrying those lines measured vertically to the messenger wire at the point of support, the telephone company shall place upon the pole immediately above the messenger wire, and substantially parallel, but not in contact therewith, a standard wooden cross arm not less than four (4) feet in length, which shall be fastened at its center to the pole by the equivalent of at least two standard cross arm lag bolts."

The plaintiff offered the practice rule and contract as evidence of the recognition, by the defendant of the dangers of the situation, and as an admission that the protection of a guard arm in the manner provided by the rule was required for the protection of linemen in the situation Derosier was in at the time he was injured. Her contention was that the guard provided for by the rule was designed to minimize all the dangers that a lineman ran of coming in contact with an electric current and the defendant's cable at the same time; that the required guard, if installed, would have prevented the accident, and that therefore the defendant's failure to install it was the cause of Derosier's injury. On the other hand, the defendant contended that the guard arm required by the rule was not designed to furnish protection against the danger which caused the injury to Derosier, but that its purpose was solely for the use of the lineman as a foot rest while he was working on the electric wires above, as a protection both to the lineman and to the defendant's wire and cable. The question thus raised as to the purpose of a guard arm under the contract, rule, and custom of the defendant was submitted to the jury with instructions.

Notwithstanding that the construction of a contract or other written document primarily presents a question for the court, nevertheless, when the construction or application of the document involves the determination of questions of fact outside of the writing, the intention of the parties may be submitted to the jury upon...