Hussey v. Boston & M. R. R.

• Citation: 133 A. 9
• Parties: HUSSEY v. BOSTON & M. R. R.
• Decision Date: 02 February 1926
• Court: Supreme Court of New Hampshire

133 A. 9

HUSSEY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

Feb. 2, 1926.

On Rehearing, April 6, 1926.

On Rehearing.

Exceptions from Superior Court; Merrimack County.

Suit by Etta B. Hussey, administratrix, against the Boston & Maine Railroad, for negligently causing the death of plaintiff's intestate, Edwin C. Hussey. Trial by jury, and verdict for plaintiff. Case transferred on defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict and to the admission of evidence. Exceptions overruled.

Robert W. Upton and Joseph C. Donovan, both of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for defendant.

PEASLEE, C. J. This is a suit to recover damages for causing the death of the plaintiff's intestate, while he was employed by the defendant to work upon and about electrical appliances. The accident occurred in an electric power station. The arrangement of the premises consisted in part of a row of transformers, located under a balcony which was supported on iron posts. At the rear of two of these posts, and attached to the under side of the balcony, there were ordinary electric light sockets. Another socket was located on the southerly post, and switches controlling the current to all these sockets and to others about the station were on the same post. Hightension wires, in groups of three each, ran from other appliances across the aisle in front of the transformers, and were attached to the bottom of the balcony. One of these wires was southerly of the post carrying the switches, and not under the balcony. The wires were slightly above the socket on the post, and the socket could not be reached by a man standing on the floor.

The decedent was an experienced lineman, and had done other kinds of work upon electrical appliances. It was a part of his duty to make repairs in this station, but there was no evidence that he had done any considerable amount of such work before the accident. On the night in question repairs on one of the northerly transformers were required. Another employee, who had charge of the electrical control, shut down one of the rota-ries. The decedent and his helper procured the needed tools, an extension light, and a stepladder. The ladder was placed near the southerly post. Hussey then placed the lamp attached to the extension cord near where the work was to be done, and laid the cord along the aisle to the post. Shortly thereafter there was an electrical discharge, and Hussey was found lying dead near the post. His hat, his head, and the palms of his hands were burned, and the light cord was lying across his body. The dust was missing from the bottom of the high-tension wire southerly of the post, and an insulator at that point was freshly chipped, indicating that the discharge had been at that place.

The defendant's motions for a nonsuit and a directed verdict present the usual questions relating to negligence of the defendant and care of the decedent. As the defendant had not accepted the provisions of the Employers' Liability Act, the defense of assumption of risk is not available here. Laws 1911, c. 163, § 2; Spilene v. Salmon Palls Mfg. Co., 79 N. H. 326, 108 A. 808.

There is abundant evidence of the defendant's fault. The location of the light socket in close proximity to the high-tension wires, when it might well have been placed two feet lower, and within easy reach of a man standing on the floor, is sufficient upon this issue. Osman v W. H. McElwain Co., 78 N. H. 597, 99 A. 287. The defendant seeks to avoid the consequences of the creation of such a situation by the claim that there was no occasion for Hussey to use this particular socket, and that he ought to have used one of those under the balcony, near the place of his work, and where the high-tension wires had been deadened by the stopping of the rotaries.

There are several sufficient answers to this proposition. Hussey had never been concerned with the management of the machinery, and even the man who had was confused and indefinite in his testimony as to what wires would or would not be deadened by the amount of shutting down that was done on the night of the accident. The sockets under the balcony were above the high-tension wires, and a crossing of one of these, when charged, with the extension light cord would be dangerous. It did not appear that Hussey knew of these sockets. His helper did not until after the accident. Whatever socket he used, he would probably have to go to the post to turn the switch. In view of these facts it cannot be said as matter of law that the defendant ought not to have anticipated the course of conduct pursued by Hussey, or that Hussey was not acting reasonably and within the scope of his employment when he sought to attach the extension light cord to the more distant socket on the post. There was sufficient evidence of the defendant's fault and of the causal relation of that fault to the accident.

The defendant relies strongly upon certain cases dealing with the unauthorized or unexpected use of premises and appliances by an employee. McGill v. Maine & N. H. Granite Co., 70 N. H. 125, 46 A. 684, 85 Am. St. Rep. 618; Morrison v. Burgess Sulphite Fibre Co. 70 N. H. 406, 47 A. 412, 85 Am. St. Rep. 634; Straw v. Pittsburg Shoe Co., 76 N. H. 35, 79 A. 495; Richardson v. Connecticut Valley Lumber Co., 77 N. H. 187, 90 A. 174. These cases all turn upon the proposition that no reasonable man would have anticipated the use which the servant made. There is no such situation here.

Upon the issue of the decedent's fault, what has already been said disposes of the claim of negligence as matter of law in his choice of a socket to be used in his work. The chief reliance of the defense is put upon the proposition that, conceding the propriety of using this socket, one in the exercise of reasonable care would have avoided contact with the high-tension wire.

It must be concluded that the decedent's death was caused by his head, covered by his hat, coming in contract with or close to the charged wire. It must also be found that the work he was doing could have been done without his getting any part of his person within the danger zone. The question thus presented is whether a workman employed in a dangerous situation can be thought to be acting with ordinary prudence when he fails to avoid a known and avoidable danger. It is manifest that no dogmatic rule of law can answer this query in all cases. Under some circumstances, failure to avoid must be found to be negligent. Collins v Hustis, 79 N. H. 446, 111 A. 286. Under others, it becomes a question for the jury. Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 A. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, i280; Nawn v. Railroad, 77 N. H. 299, 91 A. 181; Hurlich v. Railroad, 81 N. H. 286, 125 A. 150.

The earlier cases afford but little aid towards the solution of such a problem, because in them the servant's assumption of risk was so frequently a controlling factor. The provisions of the Employers' Liability Act, abolishing in this class of cases the defense of assumption of risk and changing the burden of proof upon the issue of contributory negligence (Laws 1911, c. 163, § 2), have created a new situation. Recovery is no longer denied because the servant knowingly encounters a danger. It must also appear that there was negligent conduct involved in such encounter. Unless the proof is conclusive that the result could not have happened except through the servant's negligent inattention, the defendant was not entitled to a directed verdict.

In the present case there is no direct evidence to show how or why the decedent came within the danger zone. Cause for the contact is not established. Burns upon the decedent's hat, head, and hands tend to prove that his hands were on the metal post, presumably in the act of attaching the lamp to the socket, and that his hat touched or came near the charged wire. Why his head was within the danger zone is a matter left to conjecture. It may have been through negligent inattention to the situation. It may have resulted from a cause like slipping or losing his balance on the ladder, or from something else causing unintended movement. The testimony of an expert as to a brush discharge, capable of transmission over a substantial space, and tending to cause involuntary action, suggests another solution of the problem. The evidence of the decedent's habitual care in the presence of charged wires tends to negative the idea of negligent contact. Parkinson v. Railroad, 61 N. H. 416, Greenwood v. Railroad, 77 N. H. 101, 88 A. 217. Any of the other suggested causes would, or might, negative the imputation of his negligence. None of these propositions is conclusively disproved by the evidence. It may be conceded that none of them is proved and still the decision on the motion to direct a verdict must be against the defendant. Whether the balance of probabilities is against them so that a jury should find that it was affirmatively shown that none of them existed is not a matter to be decided here. Nawn v. Railroad, 77 N. H. 305, 91 A. 181.

Where the facts surrounding the accident are fully disclosed, the statutory change as to burden of proof upon the issue of contributory negligence does not affect the question of law presented by a motion for a directed verdict. But, when there is a lack of evidence, the change is important upon the issue here. Collins v. Hustis, 79 N. H. 416, 111 A. 286. The distinction is vital in the present instance.

The whole case as to what did or did not occur just before the accident depends upon inference. In some respects the inference is inescapable; e. g., that the decedent received a shock from the charged wire. A jury would not be permitted to find otherwise. In other respects it is left in much uncertainty. Before the change as to burden of proof upon the issue of contributory...