Hector v. Boston Elec. Light Co.
| Decision Date | 22 June 1894 |
| Citation | 37 N.E. 773,161 Mass. 558 |
| Parties | HECTOR v. BOSTON ELECTRIC LIGHT CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sherman L. Whipple and William M. Noble, for plaintiff.
E.W Burdett and Charles A. Snow, for defendant.
The exceptions in this case, as amended, were allowed by the presiding justice of the superior court, if it was within his authority and discretion to allow them; otherwise, they were disallowed. The original draft of the exceptions was filed on February 20, 1892, within the time allowed. In April following, the counsel of both parties were heard upon the allowance of the exceptions. The plaintiff's counsel then asked that they be disallowed, which the justice at that time declined to do; but he suggested that the counsel confer together, and that the plaintiff's counsel point out what changes they thought should be made. This was done, and the draft of the exceptions was altered, and some things added to it, with the consent of the counsel of the defendant, who, however, did not admit that all such alterations and additions were necessary. The plaintiff's counsel did not waive their objections to the allowance of the amended draft, but contended that it was substantially a new bill of exceptions, made up and filed after the time prescribed by the statute for filing exceptions has passed. Copies of the exceptions have been furnished us, showing the difference between the bill as originally filed and the bill as amended. The excepting party has a right, if he chooses, to stand upon his exceptions as originally filed, and to prove the truth of them, if they are not allowed. The extent to which errors in such exceptions can be corrected on a petition to prove the exceptions was considered in Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010; 29 N.E. 525. The extent to which the presiding justice can allow the excepting party to amend his bill of exceptions has not been determined. In such a case as this is, where many questions of law were raised at the trial, one of which was that upon all the evidence the plaintiff could not recover, it is hardly possible that the original draft of the exceptions, without any change, would be entirely acceptable to either the presiding justice or to the other party. The other party, under the statute, has a right to be heard upon the allowance of the exceptions; and the practice has been to permit the excepting party, if he chooses, with the consent of the presiding justice, to amend his exceptions so as to state more accurately and completely the questions of law which were raised at the trial, and included in the bill of exceptions as filed. It is true that the presiding justice is not required by law to allow any such amendments, but his power to allow amendments is undoubted. Perry v. Breed, 117 Mass. 155. They cannot be allowed without the consent of the excepting party, but with his consent they can be; certainly, so far as is necessary to make the exceptions conformable to the truth, and the whole truth, with reference to the questions of law raised at the trial, and included in the original bill of exceptions. We have no occasion to consider, in this case, whether a distinct exception taken at the trial, and omitted from the bill as filed, by accident or mistake, can be added by an amendment to the original draft after the time has expired for filing exceptions. In the present bill, we think that the amendments allowed by the presiding justice with the consent of the defendant were such as were within his power and discretion to allow.
The plaintiff was a lineman of the New England Telegraph & Telephone Company, and went upon the roof of the building No. 41 Temple place, Boston, called the "Youth's Companion Building," for the purpose of affixing a telephone wire to a standard erected upon the roof of the building No. 45 Temple place, which adjoined No. 41 on the side towards Washington street. It was intended that this wire should run from West street to this standard, and thence should swerve slightly towards Washington street, and pass across Temple place. He was injured, while on the roof of No. 41, by his left hand coming in contact with a wire belonging to the defendant, through which an alternating electric light current was being transmitted. This electric light wire ran over the southeasterly corner of the building on which he was, and at the point where the plaintiff's hand came in contact with it was about 25 feet from the corner. The wire formed one side of an alternating electric light circuit; the other wire of the circuit running parallel with it, and at a distance of 17 1/2 inches from it. No wires of any kind were attached to the roof of No. 41 Temple place; and the roof was clean, smooth, and unobstructed by anything except a scuttle near the back part of it, a skylight near where the plaintiff fell, and two or three other skylights, near the rear of the roof. The roof of the building No. 45 Temple place was about 20 feet below the roof of the building No. 41, and each was a flat, or nearly flat, roof. Near the center of the roof of No. 45, the defendant, which is a corporation engaged in the business of furnishing electric light and power in the city of Boston, had erected a standard about 25 feet in height, on which were three cross-arms, running horizontally and at right angles with the line of Temple place. This standard was used for the purpose of supporting various wires which were attached to it, and ran from it to two other fixtures on the other side of Temple place. The highest cross-arm was about 5 feet long, and had on it four glass insulators, placed 17 1/2 inches apart, attached to which were four arc electric light wires. The next lower cross-arm was placed 2 feet below this, was about 8 feet in length, and had upon it six insulators, placed at the same distance apart, to which were attached electric light wires. The two insulators next to the upright post--one on each side--had attached to them the two alternating electric light wires, and the remainder of the insulators had attached to them four arc electric light wires. The lowest cross-arm was placed about 1 1/2 feet below the middle cross-arm, was about 12 feet in length, and had on it 10 insulators, placed 12 inches apart, to which were attached 10 wires, not electric light wires, of which at least 6 were telephone wires. All the wires attached to this standard ran northeasterly across Temple place, above the southeast corner of the roof of No. 41, to two fixtures on the other side of Temple place, placed on the buildings No. 24 and 34. All the arc electric light wires ran to a standard on No. 24, and the two alternating electric wires on the middle cross-arm, and the telephone and other wires on the lowest cross-arm, to a standard on No. 34. The wires thus starting from the same standard on No. 45, as they crossed over the corner of the roof of No. 41, diverged, and formed two distinct groups of wires, which, for convenience, are called the first and second groups; the wires running to No. 24 constituting the first group, and those running to No. 34 the second group. The point at which the second group of wires crossed the side of the roof of No. 41 next to No. 45, was distant from the southeast corner of the roof of No. 45 about 15 feet, and the point where the first group crossed this side was distant from the same corner about 20 feet; so that there was a distance of about 5 feet between the two groups on the side of the roof of No. 41, next to No. 45. Between the place where these groups of wires crossed the side of the roof of No. 41, next to No. 45, and the rear of the roof of No. 41, there was a distance of about 70 feet, and there was no obstruction of any kind on this part of the roof, except two chimneys, each 4 feet in width, nor was there any wire; and any one might have gone on any portion of that part of the roof, and looked down upon the roof of No. 45, without encountering any danger. The first group of wires, as they crossed above the corner of the roof of No. 41, were at distances varying from 4 to 6 feet above the roof; the two alternating electric light wires, which were in the second group, were at a distance of about 2 1/2 feet above the roof, and the telephone and other wires running from the lowest arm of the fixture on No. 45 were about 1 foot below the alternating electric light wires.
The plaintiff, at the time of the accident, was at work, with others, for the telegraph and telephone company, in stringing a telephone wire from the top of a building in West street to the standard on No. 45 Temple place, and thence to a fixture on the top of a building on the other side of Temple place. He was told by the foreman to go upon the building No. 45 Temple place, and attach this wire to the standard there. He went up through the building No. 29 Temple place, called the "Warren Building," and out upon the roof of that building; thence across the intervening roofs to the roof of No. 41. There were no steps or other means provided for getting from the roof of No. 41 to the roof of No. 45, and there was no ladder or rope on the roof which could be used for this purpose. There was access to the roof of No. 41 through the building No. 41, and also access to the roof of No 45 through the building No. 45. The plaintiff, after getting upon the roof of No. 41, and after calling to a fellow workman in the street to come up on the roof of No 45, went to look over the side of the roof of No. 41, to see how he could get down upon the roof of No. 45. He was looking over the side of the roof onto the roof of No. 45, and was stooping down (he had to stoop down to clear a large bunch of the wires), when he felt a current of electricity...
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