Lynch v. Lowell Electric Light Corp.
| Decision Date | 06 March 1928 |
| Parties | LYNCH v. LOWELL ELECTRIC LIGHT CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge.
Action by Cornelius P. Lynch against the Lowell Electric Light Corporation. Verdict for plaintiff. On defendant's exceptions. Exceptions sustained, and judgment rendered.
F. W. Mansfield and E. R. Mansfield, both of Boston, for plaintiff.
F. M. Qua, of Lowell, for defendant.
This is an action of tort. The jury returned a verdict for the plaintiff. Before this verdict was recorded the trial judge reserved leave with the assent of the jury to enter a verdict for the defendant in accordance with G. L. c. 231, § 120. The case comes before this court on the defendant'sexceptions to the denial of its motion for a directed verdict and to certain rulings and refusals to rule of the trial judge. No issues are now presented as to the plaintiff's contributory negligence or assumption of risk, and the judge ruled that there was no evidence of gross or wanton negligence on the part of the defendant. The bill of exceptions sets out the pleadings, and contains ‘all the evidence * * * which is material for a determination of the questions raised on this bill of exceptions.’
The declaration, concisely stated, alleges that the defendant is a corporation manufacturing and selling electric current in the city of Lowell and vicinity; that in the course of its business it erects and maintains poles and wires; that by the terms of a permit obtained from the city of Lowell it is granted a license to do so on condition that the same shall be kept well painted and in good condition, that the city of Lowell shall be saved harmless against all claims for damages in any way growing out of the erection, maintenance, or use of said poles and shall have the exclusive use of the upper cross-arm and tops of said poles for its signal wires to be exclusively used for municipal purposes; and that it was the duty of the defendant to maintain said poles in good, safe, and sound condition. The declaration, in substance, further alleges that the plaintiff, a lineman in the employ of the city of Lowell, on or about April 17, 1925, while in the exercise of due care and in the pursuit of his duties as a lineman, climbed a pole on Pawtucket street, almost opposite Walker street, to do some necessary work upon wires belonging to the city of Lowell which were strung upon the pole in accordance with the terms of the permit; that said pole was owned and maintained and entirely in the control of the defendant; that through the negligence of the defendant, its agents and servants the pole had not been kept in good, safe and sound condition and had not been kept painted; that in consequence of said negligence it had become rotted and in an unsafe condition so that, and as a result thereof, when the plaintiff climbed upon the pole it broke at or near its base and fell to the ground carrying the plaintiff and severely injuring him.
It was admitted at the trial thta the pole which fell with the plaintiff had become rotted, and the plaintiff's evidence tended to show that the pole had a condition of ‘dry rot’; i. e., that the pole had rotted in the interior while the shell remained apparently sound, that it was not painted, and that it broke off at a point several inches below the surface of the ground. It was agreed at the trial that the pole in question stood on Pawtucket street, that Pawtucket street is a public highway, and that the pole stood within the limits of the public highway.
The pole in question had only one double crossbar near the top. It carried two wires of the city's fire alarm attached to the crossbar; a police box affixed to the side of the pole about four feet above the ground; a cable containing wire of the city's police signal system, which ran from the top of the police box up the sides of the pole ‘clear to the top’ and was attached thereto by a series of porcelain knobs, called ‘buttons,’ all of which belonged to the city of Lowell; and nothing else. The plaintiff testified that the police cable was secured at the top of the pole by a tie rope which was ‘tied to the cross-arm with insulators'; and again, that it ‘was attached to the cross-arm at the top of the pole’; while a witness of the defendant testified that it went ‘off to another pole.’ Although the pole in question bore a number and a metal strip with the letters ‘L. E. L.’ stencilled therein, there is no claim that there were wires of the...
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...location of these structures which would otherwise constitute a nuisance. Commonwealth v. Boston, 97 Mass. 555;Lynch v. Lowell Electric Light Corp., 263 Mass. 81, 160 N.E. 413. The plaintiff by virtue of the permits secured the privilege of sharing in a common right, the enjoyment of which ......
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