Hafey v. Dwight Mfg. Co.

• Decision Date: 26 November 1921
• Citation: 240 Mass. 155,133 N.E. 107
• Parties: HAFEY v. DWIGHT MFG. CO. SAME v. TURNERS FALLS POWER & ELECTRIC CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 155

133 N.E. 107

HAFEY

v.DWIGHT MFG. CO.

SAME

v.TURNERS FALLS POWER & ELECTRIC CO.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 26, 1921.

Report and Exceptions from Superior Court, Hampden County; Henry A. King, judge.

Two actions tried together, one by James E. Hafey, administrator, against the Turners Falls Power & Electric Company, and the other against Dwight Manufacturing Company. In the first action, the court directed a verdict for defendant and reported the case for determination by the Supreme Judicial Court. In the second action the court directed a verdict for defendant, and plaintiff brings exceptions. Judgment for defendant in the first action, and exceptions in the second action overruled.

The action was brought to recover for the death of plaintiff's intestate caused by contact between a steel fish pole which he was carrying and an uninsulated wire owned, maintained and controlled by the electric company, but strung and maintained across property of the manufacturing company. The witness, Connor, was asked to state from his knowledge as an electrical engineer, whether it was good construction assuming that a wire carrying 13,200 volts led off from a pole at a point about 23 feet from the ground and sagged so that it was within 10 feet of the ground at some point between such pole and the next pole; and whether or not a wire carrying such voltage at a point 10 feet from the ground was good or poor construction. The court excluded both questions.George D. Cummings, George F. Leary, and Paul E. Tierney, all of Springfield, for plaintiff.

Ely & Ely, of Springfield, for defendant Turners Falls Power & Electric Co.

Avery, Gaylord & Davenport, of Springfield, for defendant Dwight Mfg. Co.

CARROLL, J.

The Dwight Manufacturing Company owned a large portion of a tract of land known as ‘Caleb's Island,’ situate in the Chicopee River, near its mill in Chicopee. Electric power was supplied this defendant by the Turners Falls Power & Electric Company (hereinafter called the Electric Company), by means of wires owned and maintained by it and strung across the island. The plaintiff's intestate was killed while walking on the part of the island owned by the Dwight Manufacturing Company when a steel fish pole carried on his shoulder came in contact with an uninsulated wire of the Electric Company, charged with 13,200 volts. The actions are to recover for the death of the intestate, and were tried together. In the case against the Dwight Manufacturing Company a verdict was directed for the defendant and the plaintiff excepted. In the case against the Electric Company a verdict was directed for the defendant and the case reported to this court.

Caleb's Island, including the part owned by the Dwight Manufacturing Company, had been used for many years for playing baseball and other games; and on one occasion permission was given by the agent of the Dwight Manufacturing Company to a number of boys to play ball there, provided no damage was done to the trees. There was a well beaten path on the island and the evidence showed that the plaintiff's intestate was walking on this path when his fishing pole came in contact with the uninsulated wire which had been allowed to sag within 10 feet of the ground, thereby causing his death. In order to reach the island the plaintiff's intestate had to cross the Boston & Maine Railroad bridge on either side of which there was a sign which forbade trespassing.

There was no evidence that any invitation, expressed or implied, was at any time given by either defendant to the plaintiff's intestate to go upon the land or use the premises for any purpose. Even if he were not a trespasser, at most he was a licensee, he took the premises as they were and could not complain if they were not safe. The only legal duty owed him as such licensee upon the land of the Dwight Manufacturing Company, by either the land owner or the Electric Company, was to refrain from any wilful, wanton or reckless conduct which was likely to injure him. ‘The great weight of authority seems to be that, as in the case of the land, so in the case of appliances thereon where danger is not...