Lutolf v. United Elec. Light Co.

• Decision Date: 19 June 1903
• Citation: 67 N.E. 1025,184 Mass. 53
• Parties: LUTOLF v. UNITED ELECTRIC LIGHT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 53

67 N.E. 1025

LUTOLF v. UNITED ELECTRIC LIGHT CO.

Supreme Judicial Court of Massachusetts, Hampden.

June 19, 1903

COUNSEL

J. B. Carroll and W. H. McClintock, for plaintiff.

W. S Robinson, for defendant.

OPINION

BARKER J.

The action is a statutory one for causing the death of the plaintiff's husband. The briefs of both parties assume that he was killed while upon the sidewalk of a public street, and by means of an electric shock received when he was near an electric light pole which supported a lighted street lamp, and at a time when the current which fed the lamp was causing abnormal manifestations upon the pole and the apparatus attached to it.

The exceptions taken at the jury trial are to the refusal to give seven requests, and to 'the instructions given not in harmony with said requests.' The bill sets out over 16 pages of the charge, and has no statement of any specific objection to any instruction contained in it. The first request was that upon all the evidence the plaintiff was not entitled to recover. The second, third, and seventh were addressed to the question of the defendant's negligence or that of the gross negligence of its servants. The fourth fifth, and sixth related to the question of the due care or negligence of the person killed. After the verdict the defendant filed a motion for a new trial because the verdict was against the evidence and the weight of the evidence and because the damages were excessive. After the filing of the motion, the judge who presided at the trial died, and, the motion having been heard and overruled by another judge, the defendant excepted to the disallowance of the motion by that judge.

No argument outside of those addressed to the exceptions to the refusal to give the other requests has been made in support of the exception to the refusal to give the first request, and we overrule that exception, for the reasons to be stated in connection with our decision as to the exceptions to the other requests.

Upon the question of negligence upon the part of the defendant corporation itself, as distinguished from that of its servants or employés, the evidence tended to show that the pole and its appliances had been installed for three years or more, and were part of one circuit of street lamps in a system of such circuits by means of which the defendant lighted the streets of Springfield. That these street lamps were fed by electricity, distributed sometimes from the defendant's power house in the city, and sometimes from a mill at Indian Orchard. That, when the lamps were giving light, the parts of the system in the streets carried a dangerous electric current. That defects in insulation of wires or defects in the poles or other parts of the apparatus in the streets, might make the defendant's structures in the streets dangerous to persons who might be there. That the defendant employed men who twice every night drove past each street lamp, and, while so passing, looked to see whether the lamp was burning properly, and, if so, passed on without stopping, and that one of these men had so driven past the place of the accident on the previous night, and had then observed nothing unusual or out of the regular order. That the defendant also employed another set of men, called 'trimmers,' who went to each lamp once in nine days lowered the lamp, cleaned the globes and renewed the carbons, and replaced the lamps; and that it was the duty of these men at the same time to look things over and see that there was nothing out of the way with the lamp or its apparatus or connections; and that the trimmer of the circuit in which was this lamp had visited it and trimmed it on the eighth day before the accident, and that he had then made the examination which it was has duty to make, and then there was nothing out of the way, so far as he could observe. That when the current was turned on to this circuit on the evening of the accident the lamp began to act abnormally, and that from...