Devost v. Twin State Gas & Electric Co.

• Decision Date: 06 April 1920
• Citation: 109 A. 839
• Parties: DEVOST v. TWIN STATE GAS & ELECTRIC CO. et al.
• Court: New Hampshire Supreme Court

109 A. 839

DEVOST

v. TWIN STATE GAS & ELECTRIC CO. et al.

Supreme Court of New Hampshire. Coos.

April 6, 1920.

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

Case for negligence by Joseph A. Devost by his next friend, Joseph Devost, against the Twin State Gas & Electric Company, City of Berlin, and others. Verdict for plaintiff against the City, and nonsuit as to the remaining defendants, and plaintiff and the City except. Transferred from superior court. City's exception sustained, plaintiff's exception overruled, and judgment for defendants.

Case for negligence. Verdict for the plaintiff against the city of Berlin, one of the defendants. At the close of the plaintiff's evidence the court ordered a nonsuit. Subject to the plaintiff's exception, in favor of the electric company and the Berlin Water Company, the other defendants. The city excepted to the denial of its motion for a nonsuit, and of its motion for a directed verdict.

It appears that the city was the owner of what is termed a compressor, a machine operated by electricity, which was used to furnish power to operate a drill. Tbe mechanical parts of the machine, with the exception of certain electric wires, were covered by or contained in a wooden structure some 16 1/2 feet long, 3 1/2 feet wide, and about 8 feet high. It was supported on wheels, by which it could be moved with horses from place to place. The electric power was furnished by the electric company, the connection being made by an independent electrician, who attached the wires of the compressor which were on top of it to the electric company's feed wires in the street. The current passed from the feed wires through the city's wires, which were some 3 feet above the top of the compressor, and continued down a pole at the end of the compressor to a transformer, which was inside the structure.

The water company is a public service corporation engaged in furnishing water for use in the city of Berlin. Previous to the time of the plaintiff's accident it was engaged in laying a main in Portland street to supply two additional hydrants for fire protection, at the request of the city. In doing this work a ledge of rock was encountered, and the city at the request of the water company furnished its compressor, together with men to operate it, for the purpose of ena bling the water company to drill out the ledge in pursuance with this arrangement the city j moved the compressor onto a vacant lot near where the work was being done, and after the electrical connection had been made the work of drilling was begun on July 21, 1915, and was completed on July 26, when the water company notified the city that it was through with the compressor.

The plaintiff was injured August 7 by coming in contact with the city's wires on the top of the compressor which were imperfectly insulated. Up to that time the current had not been shut off. The plaintiff was about 12 years of age, and with other children had frequently played on the lot near where the compressor was located. There was evidence that on a few occasions some of the children, including the plaintiff, had in some way climbed upon the structure and played upon the top of it after the men had finished their day's work. Other facts are referred to in the opinion.

Murchie & Murchie, of Concord, for plaintiff.

George P. Rich, of Berlin, for defendant Twin State Gas & Electric Co.

Sullivan & L>aley, of Berlin, for defendant Berlin Water Co.

Goss & James and Ira W. Thayer, City Sol., all of Berlin, for defendant City of Berlin.

WALKER, J. As against the city of Berlin the plaintiff claims that his injury is due to its negligence in placing upon the vacant lot the compressor upon which there were uninsulated electric wires, which the plaintiff—a boy some 12 years of age —inadvertently came in contact with while engaged in play. It is insisted that he was rightfully on the top of the compressor, and that in that position he was not a trespasser. If he was a trespasser, it seems to be conceded that the city owed him no duty in respect to the safety of his position, and that he is not entitled to recover damages from it resulting from his coming in contact with electric wires, owned and maintained by it. So far as the plaintiffs rights are concerned, it is not important whether the compressor was rightfully or wrongfully located upon the lot. It was put there by the city, and was its property, and while in that position the plaintiff climbed upon it and received his injury from the exposed wires. To determine the question of the city's liability it is necessary to ascertain what the relation of the parties was when the accident occurred. Is the plaintiffs contention sound that he was not a trespasser when he went upon the top of the city's compressor?

There is no suggestion in the case that the agents of the city expressly authorized him to occupy its property, or that it was aware that he had previously been upon the top of the building and might do so again, j Nor can it be found that it impliedly authorized him to climb to the top of the structure from the mere fact that he, with other children, was in the habit of playing upon the j vacant lot in close proximity to the machine. That they were rightfully occupying the lot as a playground, by license from the owner— a third party—is not evidence the city gave them a license, or permitted them to play upon its properly located upon the same lot. Lavoie v. Nashua Gummed & Coated Paper Co., 79 N. H. 97, 105 Atl. 4. It was in the exercise of its proprietary right of using its property as it saw fit, subject to no right of others as licensees or invitees to enter upon and appropriate it for their convenience or enjoyment. If an adult had been passing his time on the lot...