Robbins v. Athol Gas and Electric Co.

• Decision Date: 19 October 1920
• Citation: 236 Mass. 387
• Parties: WALTER A. ROBBINS, administrator, v. ATHOL GAS AND ELECTRIC COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 387

WALTER A. ROBBINS, administrator, v. ATHOL GAS AND ELECTRIC COMPANY.

Supreme Judicial Court of Massachusetts, Franklin.

October 19, 1920

September 22, 1920.

Present: RUGG, C.

J., DE COURCY CROSBY, CARROLL, & JENNEY, JJ.

Negligence, Causing death, Trespasser. Wanton and Reckless Misconduct. Evidence Competency, Opinion: expert.

If a boy, who without any knowledge on the part of or invitation from the proprietor, approached a factory by the main driveway leading to it, went around it to the rear, proceeded there by a grassed-over path toward its boiler room to procure empty spools such as a previous occupant of the factory had given to him, and, seeing some electric transformers standing twenty inches above the ground a few feet from the path with wires running therefrom to the factory, went to them and seizing a wire, is killed by reason of the high voltage of the electricity, there can be no recovery under St. 1907, c 375, either in an action against the proprietor of the factory or in an action against an electric company which owned, controlled and maintained the transformers and wires, unless it be shown that the boy's death was caused by wilful, wanton or reckless misconduct on the part of the defendant, the boy being a trespasser when he was killed.

At the trial together of the actions above described, there was evidence tending to show that the proprietor of the factory, less than three months previous to the accident, had authorized the electric company to place the transformers and wires on the factory grounds at some convenient place and had permitted them to remain there, where they still were owned and controlled by the electric company, that he had been informed of a break in the insulation of a wire and immediately had notified the electric company, and that the electric company had not remedied the break. There was no evidence warranting a finding that either defendant had any reason to anticipate that the boy would approach the dangerous transformer, much less put his hand upon the wires, and it appeared that he had not taken hold of the wire where the insulation was broken. Held, that, while in the light of the accident it seems that the apparatus might well have been enclosed or otherwise guarded, the evidence did not warrant a finding that either defendant had been guilty of wilful, wanton or reckless misconduct which had caused the boy's death.

St. 1907, c.

375, amending R.

L.c. 171, Section 2, so that the liability, thereby constituted, of a person or corporation for the causing of death by his or its agents or servants is based upon their negligence instead of upon their gross negligence, did not undertake to create a lower standard of duty where a penalty is sought under the statute because the injury results in death than that which exists at common law when the injured person survives.

Testimony, at the trial of the actions above described, of a companion of the boy who was killed, "I told him [immediately before the accident] not to touch it [the wires] and he said he was not afraid," was held to have been competent to prove that the plaintiff's intestate was aware of the danger of his action and was not in the exercise of due care when killed.

At the trial of the actions above described, after all the facts with reference to the transformers, wires and voltage had been placed before the jury, an expert called by the plaintiff was asked, whether in his opinion "that whole thing is safe or unsafe," the plaintiff expecting an opinion as to the danger of leaving the apparatus unenclosed. The testimony was excluded. Held, that the exclusion was proper, the subject matter being one to be determined by the jury and not one upon which the opinion of an expert was competent.

TWO ACTIONS OF TORT, each with a declaration in two counts, alleging that the defendant therein had caused the death of the plaintiff's intestate, negligence in permitting the transformer and its wires, described in the opinion, to become defective and in a dangerous condition being charged in the first count in each declaration, and "wilful, wanton and reckless negligence" being alleged in the second count. Writs dated March 3, 1919.

In the Superior Court, the actions were tried together before Sisk, J. The material evidence is described in the opinion. At the close of the evidence, a motion of the defendant that a verdict be ordered in its favor was allowed in each action and a verdict was returned accordingly. The plaintiff alleged exceptions.

W. A. Davenport, (C.

Fairhurst with him,) for the plaintiff.

J. B. Ely, for the defendant Athol Gas and Electric Company. R. H. Oveson, for the defendant Minute Tapioca Company, submitted a brief.

DE COURCY, J. These two actions, tried together, were brought to recover damages for the death of the plaintiff's son, Lewis H. Robbins, who received an electric shock from a highly charged transformer wire owned by the electric company and located on land of the tapioca company. In each case the main question is whether there was evidence of a breach of legal duty on the part of the defendant entitling the plaintiff to go to the jury.

The property of the tapioca company was on thenorth side of East Main Street in Orange. A main driveway extended from the street along the easterly side of the factory buildings. On the westerly side of the buildings, on the land of the company, there was a path or passageway which was grassed over except where ruts were made by the company's trucks in carrying coal to its bins. Members of a gun club, and owners of land to the north sometimes made use of this way, especially before the property was acquired by the tapioca company. In July, 1918, the electric company, under a contract to supply power to the factory, placed three of its transformers on land of the tapioca company a few feet west of said way, and erected poles between them and the way. The transformers were about three feet high and rested upon a platform twenty inches above the ground. The primary wires entering them carried a voltage of about twenty-three hundred volts; the secondary wires, which ran to the nearest building, carried a voltage of one hundred and ten and two hundred and twenty volts. The...