Fitzpatrick v. Public Service Co. of N.H.

• Decision Date: 09 May 1957
• Parties: Haven Lloyd FITZPATRICK et al. v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE.
• Court: New Hampshire Supreme Court

Page 634

131 A.2d 634

101 N.H. 35

Haven Lloyd FITZPATRICK et al. v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE.

Supreme Court of New Hampshire.

Argued Jan. 4, 1957.

Decided May 9, 1957.

Sheehan, Phinney, Bass, Green & Bergevin, Manchester and Bernard I. Snierson, Laconia (Wm. S. Green, Manchester, orally), for plaintiffs.

Sulloway, Hollis, Godfrey & Soden, Concord (Irving H. Soden, Concord, orally), for the defendant.

LAMPRON, Justice.

There was evidence from which it could be found that the fire was caused solely by the negligence of the defendant and its motions for nonsuit and directed verdict were therefore properly denied.

A vendor of electricity engaged in the distribution of current over its lines to consumers is bound to exercise due care in the construction, maintenance and inspection of its lines. Davenport v. White Mt. Power Company, 92 N.H. 20, 22, 24 A.2d 274. The test of due care is what reasonable prudence would require under the circumstances. Bouley v. Tilo Roofing Company, 90 N.H. 402, 10 A.2d 219.

There was evidence that defendant's employees were instructed to install wires so they will not come in contact with anything in order to prevent danger to property. In installing wires they 'like to keep away from buildings or anything where someone might accidentally get into it or hit it.' There was also testimony that it is not a desirable condition to have wires coming in contact with anything and that if there is such a contact it means that something is wrong and should be changed because of potential danger. It was also in evidence that when the service was installed in 1932 there was a discussion with the previous owner of the premises about putting a pole between the line pole and the ell and that defendant would 'rather have had one.' However because the customer did not want one it was left out.

There was also evidence that four times between the date of installation and the fire the defendant was called by an occupant of the farm to raise the wires. On those occasions the wires had sagged so that they either were striking the ice house or one was looped over its northerly lightning rod or they were obstructing entrance to the upper barn. A few weeks before the fire the wires were observed hanging at a point about halfway down the northerly rod head of the ice house.

On the above evidence the jury could find that defendant was negligent in the installation or maintenance of its wires on plaintiff's premises. Bourget v. New England Tel. & Tel. Company, 98 N.H. 237, 243, 97 A.2d 383; Davenport v. White Mt. Power Company, supra.

An expert called by plaintiffs testified that in his opinion the fire was caused because defendant's copper service wires were so situated that one or more of them could blow over and contact the lightning rod head at the northerly end of the ice house and when in that position would establish an electric arc between the copper lightning rod head and the body of the wire itself, producing an emission of sparks onto the dry shingled roof of the ice house which would catch on fire very readily. Upon that happening he testified that the lightning rod would be burned like the rod found at the north end of the ice house after the fire. Also that the electric arc would cause a fusion between the copper braid and the metal skirt around the base of the ice house like that found at the northwest corner of the ice house after the fire. Another expert witness agreed that this latter fusion was caused by electricity as was the fusion of a copper conductor of the type used in the electric service wires with a piece of lightning rod copper braid which he observed near the northwest corner of the ice house at the time of the fire.

Defendant maintains that there was absolutely no evidence that any wire ever hit a lightning rod at the time of the fire or that even if a wire did hit a rod that it remained in contact with such rod. It maintains further that there was no evidence that current, if it was on, escaped to the rod or that the ice house caught on fire contemporaneously with any of the foregoing events, even if they could have been proved. It states in its brief that 'careful analyses of the testimony of these experts will readily demonstrate that the verdicts herein were based on sheer speculation, and, in part, at least, they are based on a physical impossibility.'

There was evidence that defendant had to take up the slack in the wires on four occasions previous to the fire. Also that a few weeks before the fire they were sagging so that instead of being even with the top of the northerly lightning rod as they were when installed the wires were hanging at a point about half way down the rod. There was further evidence that on one occasion in 1950 plaintiffs 'were coming in from the field, the wind was blowing very hard, and we noticed the wire was caught on the south side of the lightning rod.' One of the plaintiffs took a wooden rake and 'pulled or pushed it off.' This evidence would sustain a finding by the jury that one of the wires blew over and came in contact with the northerly lightning rod on the ice house on the day of the fire and that it remained in contact with said rod. Emery v. Tilo Roofing Company, 89 N.H. 165, 195 A. 409.

Defendant introduced evidence that the circuit serving plaintiffs' premises was de-energized from 1:30 to 2:15 P.M. However one of the plaintiffs testified that at about 1:45 P.M. he heard the click of an electric water pump. There was also evidence that if 'molten sparks were emitted from a contact between a copper secondary wire and a copper air terminal on the top of the ice house so that sparks fell onto a shingled roof * * * a blaze * * * could take place in a matter of minutes' and 'it could also smoulder for some time and flare up later on.' When one of the plaintiffs first saw the fire the ice house roof was practically gone although its walls were not burning at all. The roof of the silo east of it was afire but not its walls and the upper barn east of that had not yet caught on fire. On that evidence the jury could find that the fire started on the roof of the ice house and that the electric current was on at a time when it could have caused the fire.

To prove that defendant's negligence caused the fire plaintiffs introduced expert opinion that a lightning rod found among the ruins at the north side of the ice house was burned by an electric power current. Also that the fusion found at the northwest corner of the ice house between braided copper wires used as a conductor for lightning rods and the metal at the base of the ice house was also caused by the same medium. There was further evidence that an electric wire observed at the time of the fire fused to a lightning rod cable on the ground resulted from the action of an electric current and not from exposure to an ordinary flame. On the basis of that and other evidence an expert witness gave as his opinion that the fire was caused by one of the defendant's copper service wires coming in contact with the lightning rod on the northerly end of the ice house and thus establishing an electric arc between the copper lightning rod head and the body of the wire itself producing an emission of sparks onto the dry shingled roof of the ice house thus setting it on fire.

Defendant takes the position that it was error to...