Edgarton v. H.P. Welch Co.

• Decision Date: 11 September 1947
• Citation: 74 N.E.2d 674,321 Mass. 603
• Parties: EDGARTON v. H. P. WELCH CO. SAME v. NEW ENGLAND POWER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 603

74 N.E.2d 674

EDGARTON

v.H. P. WELCH CO.

SAME

v.NEW ENGLAND POWER CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 11, 1947.

Exceptions from Superior Court, Middlesex County; P. G. Kirk, Judge.

Two actions of tort by Charles G. Edgarton, administrator of the estate of Henry R. Edgarton, deceased, against H. P. Welch Co., and by same plaintiff against the New England Power Company, to recover for death and conscious suffering of plaintiff's intestate alleged to have been caused by negligence of the defendants. Verdicts were directed for defendant in each case, and plaintiff brings exceptions.

Plaintiff's exceptions in the case against the New England Power Co. sustained, and, in the case against the H. P. Welch Co., plaintiff's exceptions overruled.

Before QUA, C. J., and LUMMUS, RONAN, and SPALDING, JJ.

T. M. Banks, Jr., and J. A. Perkins, both of Boston, for plaintiff.

R. N. Daley, of Boston, for defendant New England Power Co.

C. R. Flood, of Lowell, for defendant H. P. Welch Co.

SPALDING, Justice.

These are two actions of tort, brought by the administrator of the estate of Henry R. Edgarton, to recover for the death and conscious suffering of his intestate allegedto have been caused by the negligence of the defendants.¹ In each case the judge, subject to the plaintiff's exceptions, directed verdicts for the defendant. The question for decision are whether the judge should have submitted the cases to the jury, and whether he erred in excluding certain evidence offered by the plaintiff.

Facts which could have been found are these: At about 5 A.M. on August 22, 1942, the plaintiff's intestate (hereinafter called the plaintiff) was riding in a truck owned by the defendant H. P. Welch Company and operated by one of its employees, Pollard, on Ashburnham Street, Fitchburg. The plaintiff, a boy of eighteen years, had got on the truck in Vermont. (It is agreed that Pollard had no authority to invite the plaintiff to ride with him.) The truck (which was described as a tractor and trailer type) was being operated on a regular freight run between Burlington, Vermont, and Somerville and was carrying eight or ten tons of merchandise. While going around a curve on Ashburham Street, the truck, instead of following the curve, went straight on over a curbing and across a lawn until it came to a wooded bank ‘where there was a steep drop.’ Continuing down the embankment, the truck sideswiped a tree, and its rear end hit and broke off a pole on which electric wires were strung.

When the truck came to rest it was in a precarious position at the top of another steep bank. Up to this time neither the plaintiff nor Pollard had been hurt. Although the emergency brake was then set and the truck was in gear, its position was such that Pollard was afraid to take his foot off the foot brake. Pollard told the plaintiff that he had better get out and take his luggage out as quickly as possible, as he was afraid that the truck might roll further. The luggage was stored in the rear of the trailer. Being unable to open the door next to him, the plaintiff crawled through a window, went around to the rear of the trailer and took out his luggage. To obtain his luggage it was necessary for him to open the rear doors of the trailer, which were latched. The plaintiff then came around to the side of the cab where Pollard was sitting and asked him if he could get out. Upon being told by Pollard that he was unable to open the doors, the plaintiff dropped his bags in order to assist him. He put his foot on the running board and as he did so he started to say ‘Oh’ and then fell to the ground dead.² Pollard observed that as the plaintiff put his foot on the running board sparks appeared under his shoe. At about the same time sparks ‘started shooting off’ all through the truck, and Pollard kicked the door open and jumped out. Sometime later the truck plunged down the second embankment to the street below and was wrecked.

The pole with which the truck collided was owned by the defendant New England Power Company (hereinafter called the power company) which operated a substation about a mile and a half away. At this station electricity was received at sixty-six thousand volts and was ‘stepped down’ by transformers to thirteen thousand eight hundred volts. It was then transmitted to customers on ‘feeder’ lines at the reduced voltage. ‘Feeder’ No. 2 supplied nine mills of the Crocker Burbank Paper Company in Fitchburg. The pole with which the truck collided was carrying a ‘tap line’ consisting of three wires from ‘feeder’ No. 2 and supplied power to mill No. 5 of the Crocker Burbank company. These wires were not effectively insulated. When an overload on one of the lines occurred by reason of a short circuit it automatically opened a switch or circuit breaker at the substation which shut off the power. At 5:08 on the morning of the accident one of the switches opened and shut off the power on ‘feeder’ No. 2. By means of signalling devices located in the substation this fact was immediately made known to the operator in charge. This indicated to him that there ‘was trouble on the line somewhere’ which might be temporary or permanent. The indicator on the ammeter at the substation had ‘swung off scale’ at three hundred, which was its ‘full rating,’ and had stuck there. The normal load on the line was around one hundred amperes. Pursuant to a company rule, the operator allowed the current to remain off for two minutes and then turned it on. When ‘feeder’ No. 2 was re-energized the automatic switch did not reopen and the power remained on until it was shut off a half an hour later at the request of the police. ³

There was expert evidence from which it could have been found that the electric shock which killed the plaintiff occurred in the following manner. One of the broken wires of the ‘3-phase’ circuit came in contact with the ground and another broken wire came in contact with the metal body of the truck.⁴ Since the truck was standing upright, its rubber tires were a sufficient insulation to prevent the circuit being closed. When the plaintiff, with one foot on the ground, put the other foot on the running board he completed ‘the circuit and received 13,800 volts through his body, from one foot to the other.’ There was evidence tending to prove that the plaintiff was electrocuted after the current had been turned on at the substation following the two minute interruption⁵ mentioned above.

The plaintiff offered to prove, in substance, the following through a witness who had qualified as an electrical expert: As soon as the current was automatically shut off at 5:08 A.M. due to the short circuit, tests could have been made at the substation which would have indicated to a competent operator familiar with testing apparatus that ‘wires were down on the circuit.’ They would also have shown that at the point of the break two of the wires (which normally would not be grounded) were in contact with the ground, and that one of those wires was in sufficiently good contact with the ground to pass a lethal current. Tests which would have recorded this situation could have been made during the two minute interval when the current was shut off (without introducing any lethal voltage into the circuit.' Had these tests been made they would have indicated to the substation operator that conditions existed in which, if the full voltage were restored to the circuit, any person standing on the ground who came in contact with the wires or with any metal object touching an ungrounded wire would have received substantially the full voltage of the line through his body. Moreover these tests would have shown within a very few yards where the break was, and, by isolating the broken wires, power could have been restored to all the mills on the circuit except the one mill supplied by the broken tap line. Such tests could be made by instruments well known for many years to the electrical engineering world. These instruments are not unduly expensive and could be installed on the circuit and at the substation involved in this case at reasonable expense and with little difficulty. Tests of this sort have been used for such purposes for many years and they could be made without any danger to any person who might come in contact with a broken wire at the scene of an accident.

1. All of this offered testimony was excluded subject to the plaintiff's exception.⁶ We are of opinion that it ought to have been admitted. In Dolan v. Boott Cotton Mills, 185 Mass. 576, at page 579, 70 N.E. 1025, on page 1026, it was said by Knowlton, C. J., that ‘On the question whether the use of a particular machine or appliance by a defendant is negligent, a jury may properly consider all facts that throw light upon it. The possiblity and the ease or difficulty of procuring something different which is safer and better are important facts bearing upon it. That something safer has been invented and is in common use is ordinarily a fact of considerable significance. Evidence of this kind is often received in such cases.’ To the same effect are McMahon v. McHale, 174 Mass. 320, 325, 54 N.E. 854;Draper v. Cotting, 231 Mass. 51, 59, 120 N.E. 365;Robitaille v. Netoco Community Theatre of North Attleboro, Inc., 305 Mass. 265, 268, 25 N.E.2d 749, 128 A.L.R. 592. Because of the danger of raising collateral issues much is properly left to the discretion of the trial judge in determining whether such evidence ought to be admitted. Veginan v. Morse, 160 Mass. 143, 148, 35 N.E. 451;McCarthy v. Boston Duck Co., 165 Mass. 165, 169, 42 N.E. 568;Reidy v. Crompton & Knowles Loom Works, 318 Mass. 135, 142, 60 N.E.2d 589. Here the excluded evidence bore directly on the principal issue in the case, namely, the negligence of the power company. Whether it was negligent in its operation of the substation at the time of the accident was a matter the jury could not be expected to decide on the...