Fulton v. Edison Elec. Illuminating Co. of Boston

• Decision Date: 25 May 1939
• Citation: 21 N.E.2d 609,303 Mass. 258
• Parties: MARCIA S. FULTON, administratrix, v. THE EDISON ELECTRIC ILLUMINATING COMPANY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 258

21 N.E.2d 609

MARCIA S. FULTON, administratrix, v. THE EDISON ELECTRIC ILLUMINATING COMPANY OF BOSTON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1939

April 5, 1939.

Present: FIELD, C.

J., DONAHUE, DOLANCOX, & RONAN, JJ.

Negligence, Invited person, In use of electricity, Contributory, Violation of law.Proximate Cause.Evidence, Presumptions and burden of proof, Of conscious suffering.Electric Company.

Evidence, that an electric light company maintained wires upon a pole, the ownership of which did not appear, to furnish electric current for flood lights maintained by a city on the pole for its playground, and that the company was paid by the city for the current, warranted a conclusion that a workman of a private contractor had the status of an invitee of the company while upon the pole to change a lamp of the flood lights under orders of the city's superintendent of playgrounds.Maintenance by an electric light company upon a pole of high tension wires

"dead ended" but with no tape wrapped around their ends, thus leaving the cores exposed, the absence of tape tending to indicate that the wires might be "dead," warranted a finding of negligence toward an experienced workman of a private contractor who had the status of an invitee upon the pole and whom it had not warned of the condition of the wires.

A plaintiff was not bound by testimony of witnesses called by him which tended to disprove his case where testimony of other witnesses supported it.

A finding of conscious suffering of one electrocuted on an electric light pole was warranted by evidence that his moans and groans accompanied by motion of his body were heard for over seven minutes, and by the opinion of a physician as to the significance of those facts.

A ruling that an experienced workman, electrocuted on an electric light pole was guilty of contributory negligence as a matter of law because he did not take precautions against dangers of which he must have known, and did not wear rubber gloves, properly was refused where the evidence as to the obvious character of the danger and whether he wore rubber gloves was contradictory.

In the absence of evidence of a causal connection between a failure of an electric company to comply with Section 31 of G.L. (Ter. Ed.)c. 156, requiring it to mark a pole with its name or initials, and the death of a workman electrocuted on the pole, no question of negligence of the company arising from such failure should have been submitted to the jury.

TORT.Writ in the Superior Court dated October 14, 1936.Before Dowd, J. verdicts for the plaintiff were returned in the sum of $4,687.50 on the count for causing death and of $1,450 on the count for conscious suffering.

J. W. White, for the defendant.R. H. Lee, for the plaintiff.

COX, J.This is an action of tort to recover upon a declaration in two counts one for the death (G.L. [Ter. Ed.]c. 229, Section 5), and the other for the conscious suffering of the plaintiff's intestate, hereinafter referred to as Fulton, alleged to have been caused by the defendant's negligence.The answer is a general denial, that the intestate was contributory negligent and that he voluntarily assumed the risk.The case was tried to a jury, which returned a verdict for the plaintiff on each count.The defendant's exceptions are to the denial of its motions for a directed verdict on each count and to portions of the judge's charge.

The jury could have found that Fulton was in the general employment of the defendant but that he worked occasionally, with the defendant's permission, for one Pike, an electrical contractor.On February 21, 1936, which was Fulton's "day off,"he was employed by Pike to change a lamp of a floodlight, and, while at work, received an electric shock which caused his death.Pike had received an order from the superintendent of the playgrounds of the city of Newton to change the lamp.The floodlight in question was located upon the cross arm of a pole, hereinafter referred to as pole #2, which stood upon land, owned by the city of Newton, between Crystal Lake and Lake Avenue, a street not far from the water's edge.Directly across Lake Avenue in a westerly direction from pole #2, and at the intersection of Lake Avenue by Lakewood Road, there was another pole, hereinafter referred to as pole #1.Southeasterly from pole #2, at the water's edge, there was a third pole, hereinafter referred to as pole #3.Pole #2 was erected in 1911, and the floodlights were first placed upon it by Pike in 1928.The record does not disclose by whom poles #2 and #3 were erected.In the summers of 1932 and 1933, water pageants were held at the lake, and the defendant, at the expense of the city of Newton, constructed a light tower near pole #3, and did all the necessary wiring for the pageant.As a part of this work, the defendant ran two "primary," number four copper wires, each carrying twenty-three hundred volts, from the upper cross arm on pole #1 to the upper cross arm on pole #2, and thence to pole #3, from which they ran to the light tower.After the pageant in 1933, these primary wires were cut at pole #2 and were removed between poles #2 and #3, but were allowed to remain between poles #1 and #2.These wires were "dead ended on the top straightway cross arm on pole #2 . . .," that is, "one primary wire was wound around the glass insulator and then back over itself which is, strictly speaking, a dead end and the other primary wire was tied on to the glass insulator with a second short piece of wire called a tie wire, then the end of the primary wire was turned up so that it would not slip through the tie wire . . . no tape was wrapped around either of these ends so that the copper wire that formed the core of the primary wire was exposed."

Secondary wires carrying one hundred fifteen volts ran from pole #1 to the lower cross arm on pole #2 and supplied the current for the floodlights which were erected upon the top cross arm of pole #2, where the primary wires were dead ended.The primary wires had no connection with the floodlights.From the lower cross arm on pole #2 the secondary wires ran down the pole to a "switch meter box," four or five feet above the ground, and thence back to the floodlights.

On the day in question, Fulton climbed pole #2 to change a lamp and when next observed his body was hanging over a cross arm.His body was removed within one half to three quarters of an hour, and was thereupon examined by a physician who found burns upon both hands and small hemorrhages on the forehead.There was no breath, heart sounds or pulse.Artificial respiration was applied without result.A physician testified that in his opinion the current passed from one hand to another "presumably through the plaintiff's intestate's heart and vagus nerve, which caused death; . . . that in his opinion the plaintiff's intestate must have been in contact with the primary wires . . . ."It could have been found that "the dead ending on this pole was mechanically a good workmanlike job but that electrically it was not, as there should have been some protection in the form of tape over the ends of the wire; that rubber tape or varnished cambric covered with friction tape should have been used; . . . that installation of floodlights and primary wires on the same cross arm was not common practice and was not good engineering; . . . that having the primary wires and the floodlights on the same cross arm is not a safe setup . . . ."From the testimony of an electrical expert called by the defendant, it could have been found that the use of rubber tape covered with friction tape on dead ends would not be practical as a safety device unless the rubber tape were carried out some distance from the pole.

The defendant contends that even if it was negligent, the plaintiff cannot recover for mere negligence for the reason that the status of Fulton was that of a bare licensee.The record does not disclose either the ownership of pole #2 or by whom it was erected.It stood upon land owned by the city of Newton.There was evidence from a division head of the defendant whose division included the Crystal Lake area, that he was familiar with the electrical appliances in that area; that pole #1 was known to the Edison company as pole 248/1 on Lakewood Avenue; that there were telephone wires upon it, and pole tags bearing the names of the telephone company and the defendant; that pole tags are put on all "Edison poles"; that there were letter markings on the top cross arm of pole #1 under the wires, but that pole #2 had no name tag on it "as far as he knew," and the wires on that pole had no tags on them.The evidence goes no farther than to disclose a pole erected upon land of the city of Newton, which supported wires designed solely for the purpose of transmitting current for the use of the city.It also appears that when the primary wires, for purposes of the pageant, were extended to poles #2 and #3, on which latter pole there was a transformer, "the order for the transformer and current to the light tower was for a definite period of one week; that at the end of that period the light tower was taken down and the wires were removed between pole #2 and #3 . . .; that the reason they were not removed back to pole #1 in 1933 was because the company had had orders for their use on two successive years . . . ."The record does not disclose whether any issue was raised at the trial as to the ownership of pole #2.If we assume, without deciding, that pole #2 belonged to the defendant, we think the jury could have found that Fulton, while upon the pole, had the status of an invitee rather than that of a licensee, although there is no evidence of any express invitation. ...