Lydon v. Edison Elec. Illuminating Co.
| Decision Date | 06 September 1911 |
| Citation | 95 N.E. 936,209 Mass. 529 |
| Parties | LYDON v. EDISON ELECTRIC ILLUMINATING CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Elder, Whitman & Barnum and Jas. T. Pugh, for plaintiff.
Henry F. Hurlburt and Chas. M. Davenport, for defendant.
While at work in the employ of the town of Winchester, destroying gypsy and brown-tail moths in a tree at the corner of Mt Pleasant street and Highland avenue in that town, the plaintiff's intestate was instantly killed by reason of his left hand coming in contact, at a place where the insulation had been worn off, with an electric light wire running through the tree, and maintained by the defendant. This is an action under R. L. c. 171, § 2, St. 1907, c. 375, to recover damages for his death. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the presiding judge to rule that upon all the evidence the plaintiff was not entitled to recover and to give certain other rulings that were requested, to the admission of evidence, and to certain portions of the charge.
It appeared that at the corner of Mt. Pleasant street and Highland avenue there was a large pole on which were two cross-arms. From the lower cross-arm three telephone wires passed through the tree, and from the upper seven electric light wires, including the one by which the plaintiff's intestate was killed. It was admitted that the electric light wires were controlled, maintained and operated by the defendant. It was also admitted that the tree was within the limits of the highway. The wires were parallel with Mt Pleasant street, which ran east and west. The distance of the upper wires from the ground was variously estimated at from 12 to 20 feet more or less. The wire which the plaintiff's intestate came in contact with was the northerly wire on the upper cross-arm. This was what was called a primary wire and carried 2,300 volts, more than twice enough to cause instant death. Shortly before the accident the deceased had gone up into the tree for the purpose of destroying moths' nests. There was evidence tending to show that he went up till he was about a foot above the electric light wire, and that he was from 15 to 18 inches to one side and northerly of the wire which killed him and on the side next to the street. In going up he went one shide of the wires and not through them so far as appeared. Before going up his attention had been called by the foreman to the place on the wire where the insulation was worn off, and he passed the wire safely in goint up. Worn places on wires were not uncommon and the men were expected to look out for them and to warn each other. The evidence tended to show that after he had finished cutting off and painting the nests he passed down his cutting pole and the swab with which he had been painting the nests and prepared to descend along the limb where he was. While going down he asked one of the men, who was in the tree and back to back with him and about 5 or 6 feet away on the opposite side of the tree, whether he thought a certain wire was a street light and the man said he thought it was, and the foreman, who was on the ground and heard the question and answer, thereupon said that if it was 'There is no current on.' The man of whom the question was asked testified that the deceased pointed to the second wire and not to the one by which he was killed. But the jury might have found that he was mistaken and that the deceased pointed to the other wire, the one which killed him. At the time when he asked the question the deceased had descended several feet. This was the last time that he was seen alive. Shortly after, the time varying according to the witnesses from two seconds to half a minute or more, one of the men heard a groan and looking up saw the deceased about a foot below the wire with his left arm extending up above his head in a bent position and the inside of the tip of the third finger in contact with the wire at the place where the...
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