Lydston v. Rockingham County Light & Power Co.

• Decision Date: 27 June 1908
• Citation: 70 A. 385,76 N.H. 23
• Parties: LYDSTON v. ROCKINGHAM COUNTY LIGHT & POWER CO.
• Court: New Hampshire Supreme Court

70 A. 385

76 N.H. 23

LYDSTON

v. ROCKINGHAM COUNTY LIGHT & POWER CO.

Supreme Court of New Hampshire. Rockingham.

June 27, 1908.

Transferred from Superior Court.

Action by Fred W. Lydston, administrator, against the Rockingham County Light & Power Company. There was a verdict for plaintiff, and the cause was transferred on exceptions to the refusal to direct a verdict for defendant. Exceptions overruled.

Case for negligently causing the death of the plaintiff's intestate by a current of electricity from the defendant's electric light wires. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1907, of the superior court by Wallace, C. J., on the defendant's exception to the denial of a motion for the direction of a verdict in its favor. The plaintiff's evidence tended to show that on the evening of July 3, 1906, and prior to the accident, there was trouble with the defendant's electric light lines in Portsmouth, caused by a leakage of electricity. The defendant was notified, but took no steps to shut off the current. On the pole at the intersection of Middle street and a cross-walk there was a running cable and weight coming to within three feet of the ground. The light there was then poor. The decedent's attention was called to that fact, and he knew that policemen sometimes kicked the pole to start up the light. He started to walk past the pole, and when near it put his hand to the pole and instantly received a shock which caused his death. There was no insulator on the running cable at the time of the accident, but one had been put on before the trial. A view was had, subject to the defendant's exception. The jury were instructed that changes at the pole were irrelevant and should not be regarded by them.

Page & Bartlett and Ernest L Guptill, for plaintiff.

Kivel & Hughes, for defendant.

PEASLEE, J. Travelers upon public highways have the right to do all acts reasonably incident to "a viatic use of the way." "There may be a difficulty in maintaining as law the proposition that a sidewalk, so situated as to be naturally and inevitably used for the hygienic purpose of a reasonable frolic of children on their way home from school, cannot be so used without being transformed from a way into a playground, or that by the gambols of young animals on their way to pasture their use of the road as a way is abandoned." Barney v. Manchester, 58 N. H. 430, 434, 437, 40 Am. Rep. 592. As to such acts, and as to the incidental diversions of persons of mature years, the rule is "that the point at which such diversions pass the bounds of legitimate recreation as a proper use of a highway is to be found by solving the question of reasonable use as a question of fact." Applying this principle to the present case, it cannot be held as matter of law that the act of a foot passenger in placing his hand upon a pole erected in the street is an unreasonable use of the way. The soundness of this proposition does not seem to be seriously contested. The claim of the defense is that the evidence is conclusive that the decedent willfully intermeddled with its property and so met his death. The issue is as to the probative value of the evidence in the case.

The only witness to the accident was the wife of the decedent. She testified that she told her husband the light was not burning properly, and that he had once told her that policemen started the light up by kicking the pole. As he was walking past the pole, he put his hand upon it and instantly fell. It was a rainy night. The decedent was a heavy man, 58 years of age, and habitually careful about electrical appliances and about walking in slippery places. Upon this evidence alone the question whether the decedent put up his hand as a traveler lawfully might, or whether he shook the cable to make the light burn, might well be left to the jury. There was, however, further evidence. It might have been found that the deceased was intending to...