Mahan v. Newton & B. St. Ry. Co.

• Decision Date: 07 September 1905
• Citation: 189 Mass. 1,75 N.E. 59
• Parties: MAHAN v. NEWTON & B. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 1

75 N.E. 59

MAHAN v. NEWTON & B. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

September 7, 1905

COUNSEL

Geo. L. Mayberry and Vahey, Innes & Mansfield, for plaintiff.

Walter I. Badger and Wm. H. Hitchcock, for defendant.

OPINION

MORTON, J.

This is an action of tort by the plaintiff, as administrator of the estate of John P. Mahan, to recover for personal injuries to and for the death of, his intestate, which are alleged to have been caused by the defendant's negligence while the intestate was in the exercise of due care. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the court to rule, as requested by it, that the plaintiff was not entitled to recover, and to direct a verdict for the defendant and to the admission of evidence.

The accident occurred November 4, 1899. The plaintiff's intestate was at the time a lineman in the employ of the Newton & Waltham Gaslight Company, and was at work putting a cross-arm on to a pole belongting to that company in Beacon Square, Watertown. While so at work an electric current passed into and through his body, causing his death and the injuries complained of. The plaintiff contends that the current came from the contact of the trolley wire of the defendant company with an electric light wire belonging to the gaslight company and that there were no guard wires above the trolley wire, as there should have been to prevent such an accident. We think that there was evidence supporting this contention.

There was testimony tending to show that, just below the place where the plaintiff's intestate was engaged in putting up the cross-arm, there were two other cross-arms carrying wires belonging to the gaslight company. The upper arm carried two wires belonging to the so-called commercial circuit, and the lower carried wires belonging to the incandescent circuit, which supplied the street lights of the town. There was testimony tending to show that, when the plaintiff's intestate mounted the pole, there was no current passing over any of these wires. Plugs had been pulled out of a cut-off box near by, which had the effect, it was testified, of rendering the commercial wires dead wires from there to the end of the circuit, which distance included the pole on which plaintiff's intestate was working. The incandescent circuit had been shut off at the works at 12:30 a. m., and an arc circuit, which was the only other one operated by the gaslight company, had been shut off at the works at between 5 and 5:30 a. m. The cut-off box was examined half an hour after the accident, and was found with the plugs out and in good order. There was no dispute that the man was killed by the passage of an electric current through his body, and the testimony above referred to and other testimony tended to show that the current could not have come from the works of the gaslight company. The accident did not occur till a car of the defendant company approached the scene, and at the time of the accident there was testimony tending to show that the car was only a short distance away. There was also testimony tending to show that, as the car approached, the trolley pole lifted the trolley wire very near to the electric light wires, and 'one witness testified that the trolley wire was shoved up against the electric light wires.'

In view of this and other testimony, we do not see how it could be said or ruled that there was no evidence that the current which killed the plaintiff's intestate came from the trolley wire of the defendant. There was testimony to the effect that the cut-off box contained a fuse that would have burned out if at any time prior to the accident any heavy current had got into the wires connected with the box from an outside source, and that the fuse was in good condition after the accident. There was also testimony tending to show that a current of 500 volts, which was the current carried by the trolley wire, would not kill a man, or, at least, would not kill him unless he was well grounded, and that plaintiff's intestate was not well grounded. But these were matters for the jury to pass upon. It could not be ruled as matter of law that by reason of them the jury would not be warranted in finding that the current came from the trolley wire.

The fact, however, that the current came from the defendant's trolley wire, if it did so come, would not, of itself without anything more, render the defendant liable. It must further appear, or there must be evidence tending to show, that the plaintiff's intestate was killed as the result of a breach of some duty which the defendant owed to him. The negligence relied on is the failure of the defendant to put...