Gelinas v. New England Power Co.

• Decision Date: 01 April 1971
• Citation: 359 Mass. 119,268 N.E.2d 336
• Parties: Albert A. GELINAS, Jr. v. NEW ENGLAND POWER COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 336

268 N.E.2d 336

359 Mass. 119

Albert A. GELINAS, Jr. v. NEW ENGLAND POWER COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 9, 1970.

Decided April 1, 1971.

Joseph M. Cohen, Boston, for plaintiff.

Francis H. George, Worcester, for defendant.

Before SPALDING, CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

This is an action in tort for negligence in which the plaintiff seeks recovery for personal injuries sustained by him when electricity from a transmission line of the defendant entered a machine on which the plaintiff was working and passed through the machine to the ground. The case is before us on the plaintiff's exceptions to the allowance of the defendant's motion for a directed verdict, and to the exclusion of evidence offered by the plaintiff.

We summarize the evidence in its aspect most favorable to the plaintiff to determine whether it was sufficient to permit the case to be submitted to the jury. Applying that test, we omit whatever evidence tends to contradict that aspect, or to support the contentions of the defendant on disputed facts. The plaintiff was entitled to have the case decided by the jury 'if anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.' Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411, 412; Adams v. Herbert, 345 Mass. 588, 589, 188 N.E.2d 577.

The plaintiff was injured on September 30, 1965, while employed by the Granger Contracting Co., Inc. (Granger) in the repair and maintenance of its construction equipment at its yard in Millbury. On that date and for fifty-four years prior thereto the defendant owned and maintained an overhead electrical transmission line across the property. Granger purchased the yard in 1948. In that year the defendant, at Granger's expense, replaced the existing poles with taller poles and raised the existing wires to a minimum height of thirty feet above the ground. The wires thus raised had been installed ten to fifteen years previously, and the same wires remained at the increased height to the time of the plaintiff's injury. No other work was done on those wires from 1948 to the date the plaintiff was injured. The line was patrolled 'each week for visual inspection.'

The transmission line consisted of six wires carrying electricity at 69,000 volts. Each of the six wires was made up of seven strands of bare copper wire wound spirally along their lengths to form a cable type unit. Each of the seven strands was of 2/0 gauge size, or less than one-eighth of an inch in diameter.

On September 30, 1965, the plaintiff and his supervisor were attempting to repair a conveyor used to lift concrete to high elevations. The conveyor was located at a point in the yard under the power line. It had been placed there to be near the shop where the tools were kept and to be out of the way of trucks. The conveyor included a motor driven belt which ran on a metal beam forty feet long. When in proper working order, the front end of the beam could be raised to a maximum height of twenty-six feet above the ground. At that time, due to some mechanical problem, it could be raised to only nineteen feet and the repairs were intended to correct that condition. The plaintiff was working on the motor while his supervisor was at the controls trying to raise the front end of the conveyor. It went up to nineteen feet and stopped with its highest point about elevent feet below the defendant's wires.

With the machine stopped in that position, an electric current from the defendant's transmission line went down to and through the conveyor. It manifested itself in a yellow blue flash which started at the overhead wires and traveled in a downward direction. The supervisor saw and heard something which he described as 'an explosion like a ball of fire and a crackling noise' and also 'as if something came down and formed into a ball.' The supervisor was thrown against a warehouse fifteen or twenty feet away. The plaintiff was rendered unconscious in a kneeling position beside the machine. He had three burn marks on his feet with corresponding burn holes in his socks and shoes, and there were burn marks on his shirt and pants.

Immediately after the accident the highest point of the conveyor was nineteen feet above the ground. The incident caused one of the conveyor's tires to blow out, and it caused burn marks about four or five feet from the top of the conveyor. There were also burned spots on the tow hitch and in other places on the left hand side to the rear of the conveyor, and small burned spots on the ground. These indicated the path of the current to the ground. At the spot where the current went into the ground 'it was like rock,' and 'it looked like glass had melted.'

About one-half hour after the accident the defendant's superintendent of transmission arrived at the yard and he looked at the wires in question with the aid of field glasses. He saw 'a couple of strands, that were hanging or sticking out' about one inch, with evidence of electrical burn at that point. Farther along the same wire one strand was burned leaving a burned spot not more than one inch in size. The burned spots indicated to the superintendent that there had been some object between the spots and the ground. Three days thereafter the defendant 'replaced approximately two feet of this conductor * * * because a string of the conductor was damaged.'

The superintendent expressed the opinion that if a strand of the wire were broken for a while the wind might cause it to become a little longer, that the longer the piece of wire the more it would be subject to being blown, and that this process could go on for several days. He also testified that such wires 'wear out from use or overload and from use or being over 27 years old.'

The plaintiff called as his witness a registered professional engineer who qualified as an expert in the electrical field. He testified in part as to what he observed when he visited the yard about two years after the accident and in part in answer to hypothetical questions. He defined the word 'arcing' as the discharge of electricity through a wire from one conductor to another. He in turn defined the word 'conductor,' sometimes also called a 'leader,' as any piece of metal although it is usually a piece of wire. In his opinion if the defendant's wires were thirty feet above ground and the highest point of the conveyor was nineteen feet above ground, electricity from the wires could not arc to the conveyor. The greatest distance that electricity from the high tension wire could arc to an object below would be one foot, and it would be less than that under certain variations in voltage. It was his opinion that electricity from the defendant's wires arced to the conveyor through a piece of wire hanging from the defendant's wires and going down to within a foot of the conveyor. There was no way the electricity from the defendant's wires could enter the conveyor eleven feet below the wires unless there was a hanging wire spanning that distance to within a foot of the conveyor. If the conveyor and such a hanging wire came within a foot or less of each other for a fraction of a second, the electricity would arc to the conveyor. The hanging wire acting as such a conductor could be of any size, even as small as a piano wire.

It is apparent from the foregoing summary that there was no evidence of any specific negligent act or omission by the defendant causing the injuries for which the plaintiff seeks recovery. The plaintiff argues that the case should have been submitted to the jury under the doctrine of res ipsa loquitur. 'In recent years this court has tended to avoid the use of the Latin phrase even while applying the principles included within it by the common understanding. * * * This has been done in order to avoid the confusion and 'mass of verbiage' built up around the expression.' Evangelio v. Metropolitan Bottling Co., Inc., 339 Mass. 177, 179--180, 158 N.E.2d 342, 344, and cases and other authorities cited therein.

Stated without resort to the confusing Latin phrase, the issue is whether the evidence, considered in its entirety and in its light most favorable to the plaintiff, was sufficient to permit the jury as the trier of facts to infer that some negligent act or omission by the defendant caused the injuries sustained by the plaintiff. The test is not whether the evidence was such that it required the jury to infer negligence by the defendant, but only whether it was sufficient to permit such an inference. Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234, 200 N.E. 883. We conclude that it was sufficient for that purpose.

The defendant owed the plaintiff the...