Edgarton v. H.P. Welch Co.
| Decision Date | 11 September 1947 |
| Citation | 321 Mass. 603,74 N.E.2d 674 |
| Parties | CHARLES G. EDGARTON, administrator, v. H. P. WELCH CO.(and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 6, 1947.
Present: QUA, C.
J., LUMMUS, RONAN & SPALDING, JJ.
Negligence Electricity, Trespasser. Evidence, Relevancy and materiality Competency. Joint Tortfeasors. Trepass. Conscious Suffering. Motor Vehicle, Trespass.
In an action against a power company for the death of the plaintiff's intestate, who was electrocuted through indirect contact with a broken electric wire in which the current had been automatically shut off when the wire had been broken and then had been turned on again by the operator of the company's substation after an interval of two minutes in accordance with a rule of the company, expert testimony offered by the plaintiff, that the company could have installed in the substation at reasonable expense and with little difficulty instruments well known in the electrical engineering world by which, during the two minute interval and without introducing a lethal current into the wire, the operator could have made tests indicating the existence and approximate location of the break and the existence of conditions there involving danger of lethal shock to one in the situation of the intestate if the full current were turned on, was relevant to the issue of the company's negligence and was erroneously excluded, especially where the company, before such testimony was offered, had raised the matter of the feasibility of tests in examination of its operator.
A finding of negligence of a power company toward a boy would have been warranted by evidence in substance that a truck in which the boy was riding struck a pole and broke a high voltage electric wire of the company, thereby automatically shutting off the current in the wire by a circuit breaker at a substation; that, in accordance with a rule of the company, an operator at the substation, after an interval of two minutes, had turned on the full current again without making inquiry by telephone into the existence or location of the break or the situation at the scene of the break; that such matters could have been revealed to him during the two minute interval by tests made at the substation if the company had installed there certain instruments which it would have been reasonably feasible for it to install; and that shortly after the current had been turned on again the boy was electrocuted by indirect contact with the broken wire.
A power company, if its negligence was a concurrent cause of the death of a boy through indirect contact with a broken high voltage electric wire, would not be relieved of liability for the death by the fact that it might have been attributable in part to negligence of one who caused the breaking of the wire.
A boy riding in a motor truck when, without voluntary act on his part, it went off a highway onto private land, where he was electrocuted by indirect contact with a wire of a power company which it had an easement to maintain on such land and which had broken and had fallen when the truck struck a pole, was not a trespasser respecting the power company, and the administrator of his estate was not precluded on that ground from maintaining an action for his death against the company.
A finding that a boy, electrocuted through indirect contact with a broken electric wire carrying a current of high voltage, suffered consciously would not have been warranted by evidence that upon the contact he started to say "Oh" and then fell to the ground dead.
The owner of a motor truck operated by his employee was not liable for the death of a boy who, by an unauthorized invitation of the operator, was riding in the truck when, through negligence of the operator, it went off the highway onto private property and came to rest there in a precarious position at the top of a steep bank and in contact with a high voltage electric wire broken by it, and who, without further negligence on the part of the operator, was electrocuted by simultaneous contact with the ground and with the truck after he had got out of the truck and while he was attempting to assist the operator to leave it.
TWO ACTIONS OF TORT. Writ in the first action in the District Court of Central Middlesex dated July 15, 1943; writ in the second action in the Superior Court dated August 20, 1943.
Upon removal of the first action to the Superior Court, the actions were tried together before Kirk, J.
T. M. Banks, Jr., (J.
A. Perkins with him,) for the plaintiff.
R. N. Daley, for the defendant New England Power Company.
C. R. Flood, for the defendant H.
P. Welch Co.
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 alleged to 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 questions 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 was riding in a truck owned by the defendant H. P. Welch Co. and operated by one of its employees, Pollard, on Ashburnham Street, Fitchburg. The intestate, a boy of eighteen years, had got on the truck in Vermont. (It is agreed that Pollard had no authority to invite the intestate 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 Ashburnham 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 intestate 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 intestate 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 intestate 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 intestate 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 intestate 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. [1] Pollard observed that as the intestate 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 reenergized 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. [1]
There was expert evidence from which it could have been found that the electric shock which killed the intestate 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. [2] Since the truck was standing upright, its rubber tires were a sufficient insulation to prevent the circuit being closed. When the intestate, with one foot on the...
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