Dunbar v. Hollingsworth & Whitney Co.

• Citation: 84 A. 992,109 Me. 411
• Parties: DUNBAR v. HOLLINGSWORTH & WHITNEY CO.
• Decision Date: 12 November 1912
• Court: Supreme Judicial Court of Maine (US)

84 A. 992

109 Me. 411

DUNBAR

v. HOLLINGSWORTH & WHITNEY CO.

Supreme Judicial Court of Maine.

Nov. 12, 1912.

On Motion from Supreme Judicial Court, Somerset County, at Law.

Action by Perle E. Dunbar against the Hollingsworth & Whitney Company. Verdict for plaintiff, and defendant moves for a new trial. Motion sustained.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ.

Pattengall & Plumstead, of Waterville, W. B. Brown, of Madison, and Merrill & Merrill, of Skowhegan, for plaintiff.

Johnson & Perkins, of Waterville, and Butler & Butler, of Showhegan, for defendant.

SAVAGE, J. Action on the case for alleged negligence of the defendant, a master, whereby the plaintiff, a servant, was injured. The plaintiff recovered a verdict for $4,395.83. The case comes here on the defendant's motion for a new trial.

Most of the facts are not in dispute. The defendant was building a pulp mill at Madison. In the process of construction it became expedient to set up a derrick near the pole line of the Madison Electric Works. Two of the wires on this pole line were high-voltage wires carrying 2,200 volts of electricity. For the purpose of staying the derrick mast when erected, the defendant's servants were pulling a guy wire over and diagonally across the electric wires, within a few inches of an electric light pole, and across the cross-arm. One end of the guy wire was intended to be attached to the mast, and the other to a "dead man" in the ground on the other side of the pole line. When completed, the guy wire would be above the electric wires, and clear them; but, while being pulled over, the guy wire was in contact with the electric wires, and wore off the insulation, so that the guy wire touched the metal of one of the electric wires. The men who were handling the guy wire received electric shocks. One of the men caused the guy wire to be lifted from the bare electric wire and moved a few inches, to where the insulation remained intact. There it was found the next morning. One end, at least, of the guy wire was on the ground. On the following morning the plaintiff was directed to fix the damaged wire. He undertook to do so. The necessary repairs consisted in winding tape around the abraded spot on the wire. He put on his climbers and climbed the pole. He put his right leg over the cross-arm, in such a way that it rested on the guy wire. His left foot rested on the cross-arm brace. He then reached out with his left hand to wind the wire. Being in contact with the grounded guy wire, it was only necessary for him to touch the electric wire, when his body would complete the circuit, and the electricity would escape from the electric wire and pass through him and the guy wire to the ground; and that was what undoubtedly did happen. One witness, indeed, testified that he saw one workman pick up the guy wire on the ground that morning, and drop it as if shocked. This would indicate that the guy wire was then in contact with the bare spot in the electric wire. But this is contradicted by all the other evidence in the case. That occurrence doubtless took place the day before, when they were pulling the guy over the wire, as was described by another witness. While the plaintiff was passing the tape around the wire, he received an electric shock. He says he does not know just how it happened. He says the guy wire was resting, not on the bare spot, but on the insulated portion of the electric wire. If so, the electric current did not pass from the electric wire to the guy wire through a direct contact of the two wires. The guy wire itself was not charged before the plaintiff began work. It could be charged only by being connected with an uninsulated part of the live electric wire. The plaintiff received no shock when he put his leg on the guy wire. There was no way for him to get a shock until, with his leg over the grounded guy, he touched a live wire with some other part of his body. His physician testified that he had two burns, one on the thumb and first finger of his left hand, and the other on the back side of his right leg, a little above the knee. His position, as we have described it, perfectly accounts for these burns. As a result of the injury, the plaintiff's thumb and finger on the left hand were amputated.

The plaintiff in his writ charges the defendant with negligence in two particulars, namely, a failure to furnish him with a reasonably safe and suitable place to work, and a failure either to inform him that the guy was charged with electricity, and that its condition was therefore dangerous, or to shut off the current. The defendant denies negligence on its own part, and contends that the plaintiff was guilty of contributory negligence.

It will be noticed that the theory of the writ is that the guy wire was charged with electricity, and that the plaintiff received his injury through coming in contact with it. But that, we think, is clearly a misconception. There is no evidence that the guy wire was in contact with any uninsulated portion of the electric wire. As already stated, the plaintiff himself asserts that it was resting on an insulated portion. There was no way for it to...