Nelson v. Branford Lighting & Water Co.

• Decision Date: 04 March 1903
• Citation: 75 Conn. 548,54 A. 303
• Court: Connecticut Supreme Court
• Parties: NELSON v. BRANFORD LIGHTING & WATER CO.

54 A. 303

75 Conn. 548

NELSON

v. BRANFORD LIGHTING & WATER CO.

Supreme Court of Errors of Connecticut.

March 4, 1903.

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Action for wrongful death by Ludwig Nelson, as administrator of John A. Nelson, deceased, against the Branford Lighting & Water Company. From a judgment for plaintiff on hearing in damages to the court, defendant appeals. Affirmed.

Seymour C. Loomis and Earnest C. Simpson, for appellant.

Charles S. Hamilton, for appellee.

BALDWIN, J. In 1887 the town of Branford built a highway bridge over the Branford river, with a draw. It was a truss bridge, with a railing on each side. On the westerly side of it, outside the railing, was a platform, with steps leading down to a small landing for boats, which was eight feet below the roadway. Ever since the construction of this bridge the boys and young men in the neighborhood had been, with the knowledge of the selectmen, in the custom of bathing from it in summer, and, while so doing, of running and exercising themselves upon and jumping and diving from all parts of the bridge and draw; the smaller boys confining themselves to the landing, platform, and floor, but the larger ones diving and jumping from the railings and trusses. In 1896 the defendant constructed a line of wires for electric lighting purposes along the highway, and bolted one of its poles to the piles of the bridge at each side of the draw. An iron pipe was attached to each pole, through which the wires were carried down to the bottom of the river and across the bottom. In the summer of 1900, in lieu of this arrangement of the wires, overhead wires were strung between these poles, which could be detached and removed whenever a vessel passed through the draw. These ran over 14 feet above the floor of the bridge, and that nearest the west edge of it was about 5 feet 5 inches above the peak of the truss and 17 inches west of its west face. The selectmen inspected the defendant's line in 1896, and approved it. They were not consulted as to the change of construction made in 1900, and it did not appear that they approved it. The use of the bridge for bathing purposes continued thereafter as before, with their knowledge and that of the defendant. The wires above the draw were insulated so as to protect them against the weather, but not so as to make personal contact with them safe. The current was turned on every day towards dark, and then they were dangerous to handle. No notice of such danger was given by the defendant, although it knew that the bridge had so much iron upon it as to be a good conductor of electricity, and that the current was liable to diversion if one standing on the bridge should touch the wire overhead, particularly if he were wet at the time. In July, 1901, at about a quarter before 7 in the evening, the plaintiff's intestate, a boy of 16, who had been in the water, while bathing from the bridge, walked up the west truss, clothed only in bathing trunks, to the peak, which was over 17 feet above the river, and asked some boys below if they thought he would touch bottom if he dove from there. He then faced about to the west, and—whether voluntarily or instinctively to prevent a fall did not appear—caught hold of the nearest of the overhead wires, and was killed almost instantaneously by an electric shock. He knew that the wire was an electric light wire, and that a boy had received a shock a year before, while climbing the nearest of the poles for the purpose of diving, but it did not appear that he knew that the wires were dangerous to handle.

The superior court has found that the defendant failed to prove that it was not negligent in running the overhead wire as it did, with no greater precautious against danger to bathers, and failed also to prove that the boy was guilty of contributory negligence. There is nothing in the facts specially found inconsistent with these conclusions. The defendant was bound to a very high degree of care a the use for its own purposes of a highway bridge. McAdam v. Central Ry. & E. Co., 67 Conn. 445, 447, 35 Atl. 341. In determining what precautions against danger to human life were reasonably necessary, it was bound to consider all the uses to which the bridge was customarily put it is found that it was convenient to the defendant to have the wires no higher above the truss; but convenience in such a matter is a subordinate consideration. The bridge, as part of a public highway, was open to general public use. Under the law of this state the purposes of a highway are not regarded as wholly restricted to serving the right of passage. He who is standing on one as a mere sightseer, to gratify his curiosity, is rightfully there. Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 36, 33 Atl. 533. The custom of boys to dive from the bridge was known to the defendant. The selectmen, who represented the town which owned it, had known of this practice for 14 years. So far as appears, they had expressed no disapproval. Silence for so long a time might naturally be taken as importing acquiescence. It was for them, and not for the defendant, to determine how the town property should be used. As far as the defendant is...