Public Service Co. of New Hampshire v. Elliott

• Decision Date: 30 October 1941
• Docket Number: No. 3684.,3684.
• Citation: 123 F.2d 2
• Parties: PUBLIC SERVICE CO. OF NEW HAMPSHIRE v. ELLIOTT et al.
• Court: U.S. Court of Appeals — First Circuit

123 F.2d 2 (1941)

PUBLIC SERVICE CO. OF NEW HAMPSHIRE v. ELLIOTT et al.

No. 3684.

Circuit Court of Appeals, First Circuit.

October 30, 1941.

COPYRIGHT MATERIAL OMITTED

Carl C. Jones, of Concord, N. H. (Demond, Sulloway, Piper & Jones, of Concord, N. H., on the brief), for appellant.

Richard H. Lee, of Boston, Mass., and Robert P. Booth, of Manchester, N. H. (Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester, N. H., on the brief), for appellees.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

Carmon M. Elliott, Jr., a minor, brought suit for damages on account of injuries received by him while on a tour of inspection through a substation operated by the defendant, Public Service Company of New Hampshire. His father also sued to recover medical and hospital expenses, and for loss of his son's services, resulting from the accident. Jurisdiction in the court below rested on diversity of citizenship. The cases were tried together and resulted in verdicts and judgments for the respective plaintiffs. We have before us the consolidated appeals of the defendant from the two judgments.

The only alleged error relied upon in appellant's statement of points on appeal and in its brief is the trial judge's refusal to grant defendant's motion for a directed verdict in each case at the close of all the evidence. We have, therefore, no occasion to consider the charge to the jury, though the charge is included in the record. If under the governing New Hampshire law as applied to the evidence the plaintiffs were entitled to go to the jury, the judgments must be affirmed.

Since the father's action is dependent upon the right of the son to recover, we shall hereafter refer to the son as the plaintiff.

For many years the defendant had made it a practice to admit to its Brook Street substation in Manchester, New Hampshire, groups of students on inspection trips. Among the schools which had thus been accommodated in the past had been the local high school and the Wentworth Institute, a trade school in Boston, Massachusetts.

At the time of the accident the plaintiff, a boy 19 years old, and six feet one inch tall, was in the second year of a course on electrical construction at Wentworth Institute. The laboratory there contained no high voltage installations but the class had received some theoretical instruction on high tension, and the instructor had warned against the danger of coming in contact with, or in near proximity to, exposed high voltage parts. However, Professor Wilson, one of the instructors, testified: "I don't believe any of these boys appreciated the devastating effect of a high voltage are. We told them it was dangerous."

On May 13, 1940, the plaintiff and about twenty-five of his classmates, accompanied by three instructors in the school, went to inspect the defendant's electrical substation in Manchester. The trip was required as part of the school's educational program. By prearrangement they were met at the door by defendant's employee Cates, the chief operator of the substation. "We put ourselves in his hands," Wilson testified. Cates escorted the party through the building, explaining the equipment and answering questions. They went first through the main switchboard room, thence by a passageway to the assembly room, and from there through a door, which Cates unlocked, into the high tension room where the accident happened.

Two signs marked "Danger" were visible in the main switchboard room, but there were no danger signs in the assembly room, nor on the door of the high tension room, nor anywhere within the latter room. Cates gave no special warning to the boys, as he led them into this, the most dangerous, room in the substation, nor did the plaintiff receive any warning from his instructors at this time.

The boys congregated in somewhat straggling groups in the aisle of the high tension room.

The plaintiff stood near a current transformer, in a group to which Cates was talking. The cylindrical tank of the transformer rested on a steel stand or support. Mounted on the tank was a porcelain bushing or insulator from the top of which emerged about two inches of an uninsulated copper conductor. Attached to this copper conductor were two copper tubings or bus bars rising vertically to the ceiling, through which tubings the current is conducted in and out of the transformer. Also attached to the copper conductor at the top of the bushing were two metal brackets extending horizontally for several inches out toward the aisle. These brackets supported an inverted glass jar containing a bypass protector or lightning arrestor. The two terminals under the bypass protector, to which the horizontal brackets were attached, each ended in a brass stud which was alive and uninsulated. These terminal studs, and the other exposed live parts, namely, the copper conductor leading out of the top of the bushing and the horizontal metal brackets, were about seven feet from the floor, well within the reach of a grown man standing in the aisle nearby the current transformer unit.

As previously stated, there was no warning sign on the transformer. Nor had the plaintiff been warned to expect, when he came into the high tension room, that live parts would be found exposed in such dangerous proximity to persons standing in the aisle. Further, a qualified expert put on by the plaintiff testified that according to recognized principles of safety in installing high voltage equipment, unguarded live parts should have a minimum vertical clearance of nine feet six inches above the floor, or "well out of reach" by an inadvertent gesture of the hand. He said that in laying out the installation the stand on which the current transformer rested could have been made higher so as to obtain the desired clearance, without impairing operating efficiency. The defendant sought vigorously to discredit this expert's testimony, but its weight was for the jury.

While Cates was explaining something overhead, one of the boys asked him what the glass jar was. Cates appeared not to hear the question, whereupon the plaintiff said, "He means this," or words to that effect, pointing with his left hand toward the bypass protector. He did not touch anything, but the tip of his finger came within one, two or three inches (as variously testified by eyewitnesses) of the terminal studs under the glass jar. A blinding flash occurred as current jumped from the terminal to the plaintiff's finger. He fell to the floor unconscious and severely injured.

The defendant moved for a directed verdict on the grounds (1) that the plaintiff was guilty of contributory negligence as a matter of law, (2) that there was no evidence on which a jury could reasonably find the defendant negligent, and (3) that the plaintiff was a bare licensee who, under the law of New Hampshire, must take the premises as he found them.

As to the plaintiff's status in the substation we assume it to have been that of a gratuitous licensee whose presence at the time was known to the defendant. This much is conceded by the defendant. So far as the facts of this case are concerned, the result would not be different, under the New Hampshire law, whether the plaintiff were an invitee or business visitor, a gratuitous licensee, or...