Rolanti v. Boston Edison Corp.

• Decision Date: 29 December 1992
• Docket Number: No. 91-P-230,91-P-230
• Parties: Richard ROLANTI & another 1 v. BOSTON EDISON CORPORATION & another. 2
• Court: Appeals Court of Massachusetts

Page 211

603 N.E.2d 211

33 Mass.App.Ct. 516

Richard ROLANTI & another ¹ v. BOSTON EDISON CORPORATION & another. ²

No. 91-P-230.

Appeals Court of Massachusetts Suffolk.

Argued May 19, 1992.

Decided Nov. 10, 1992.

Further Appellate Review Denied Dec. 29, 1992.

Thomas D. Burns, Boston, for Boston Edison Corp.

James E. Caffrey, Boston, for New England Tel. & Tel.

George C. McMahon, Quincy, for plaintiffs.

Before BROWN, FINE and GREENBERG, JJ.

GREENBERG, Justice.

Aggrieved by an adverse judgment (founded on a jury verdict) concerning their joint efforts to repair a fallen utility pole, the defendants, Boston Edison Corporation (Edison) and New England Telephone and Telegraph Company (N.E.T.), argue that the trial judge mistakenly failed to allow their motions for directed verdicts and for judgments notwithstanding the verdict on the ground that there was insufficient evidence of any negligence. The defendants also claim that the jury were unduly prejudiced by opposing counsel's improper closing argument. Edison further urges that it is entitled to a new trial because the judge's instructions to the jury were flawed.

The plaintiffs' action seeks damages for an injury that the plaintiff Richard Rolanti (Rolanti), a Needham police officer, sustained on February 22, 1983, while directing traffic.

On April 4, 1989, after seven days of trial, the case was submitted to a jury on special questions, only one of which is germane to this appeal. The jury compensated Richard with an award of $90,000 in damages but awarded no compensation to his wife, Margaret Rolanti. After the judge denied the defendants' motions for a new trial, judgment was entered. ³

We review the salient facts which the evidence allowed the jury to find. On February 22, 1983, about one and one-half hours before Rolanti was injured, Selma Seligman sneezed, momentarily lost control of her motor vehicle, and skidded off Great Plain Avenue in Needham into an adjacent utility pole. The impact severed the pole just above ground. Since it was anchored by several ground cables, the pole remained close to its original position. Apparently owing to the angle at which the pole precariously rested, however, there was slack in all of the attached wires which traversed the street. Two officers of the Needham police department were called for assistance. They diverted traffic to nearby side streets to allow access to the site for emergency service vehicles. Ten minutes later, after they reopened Great Plain Avenue, one of the officers, Linwood Hamilton, called his dispatcher and told him to notify Edison and N.E.T.

Edison overhead line supervisor Kevin Moore was stationed at Dedham when he heard a radio report of the event at about 3:20 P.M. He drove directly to the scene in his own car and arrived some ten minutes later. There, he determined that the pole was one for which N.E.T. had exclusive responsibility and asked an Edison dispatcher to call for a N.E.T. crew to replace it. Such a call was received by N.E.T. construction manager, Richard Graham, at 3:30 P.M. at the N.E.T. depot in Watertown. Within ten minutes a crew was assembled and began their trek from Watertown to Needham in congested traffic, with a pole lashed on the service truck.

Graham drove ahead in his car. In the interim, just before the N.E.T. crew arrived at the accident site, Edison repair crews were already at work on power wires attached to the damaged pole, so that they could later be transferred to the new one. Rolanti, who relieved Officer Hamilton, assumed the task of directing traffic along Great Plain Avenue--its width narrowed by service vehicles parked along the side of the street. He stood beside an Edison repair truck, about three feet from the center line of the street, which was immediately adjacent to the damaged pole. Graham and his crew then arrived. It was 4:37 P.M. As Graham was parking his car in the space between the Edison repair truck and the broken pole, Rolanti faced Glenn Cunningham, who drove a tractor-trailer towards the site. Rolanti saw him approach and waved him to his right underneath the wires which sagged the least. As Cunningham's truck passed the pole, his trailer snagged one of the overhead wires--then, a "crackling" sound ominously filled the air as the pole toppled onto the parked Edison truck. Fortunately for Rolanti, a protective cage atop the cab of the truck absorbed the bulk of the force of the falling pole, but one of the cross-arms dealt him a glancing blow to the head.

Rolanti was treated at a hospital in Needham and released the following morning. On March 8, 1983, Dr. William L. Mason, his treating otolaryngologist, diagnosed a middle ear injury. Dr. Mason opined that this condition was causally related to the accident. He told the jury that "[t]he medical diagnosis was that of a perilymphatic fistula"; loosely translated: there was leakage of fluid from the injured structures of his inner ear which adversely affected his equilibrium.

Rolanti remained out of work for over two years. Examinations by two neurologists turned up different assessments of what organ was involved. He received sick leave benefits equal to his full regular salary from the town. Finally, in February of 1985, he became asymptomatic and by the following month had resumed all of his pre-accident activities.

1. Denial of defendants' motions. We turn first to the defendants' claim that it was error for the trial judge to deny their motions for directed verdicts and for judgments notwithstanding the verdict. In reviewing the denial of a directed verdict or a judgment notwithstanding the verdict, the question before us is the same: that is, whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff[s]." Dobos v. Driscoll, 404 Mass. 634, 656, 537 N.E.2d 558 (1989), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972). The court may not substitute its judgment of facts for that of the jury. O'Shaughnessy v. Besse, 7 Mass.App.Ct. 727, 728, 389 N.E.2d 1049 (1979). Even with these limitations, we conclude that the judge should have granted the defendant N.E.T.'s motions.

N.E.T.'s Graham testified that to complete the process of loading a new pole onto the carrier dolly ordinarily takes about thirty minutes. In this case, the operation went faster: both the pole and the crew were ready to travel in ten minutes. Graham further testified that the trip from the Watertown yard to the accident site in Needham took a little over half an hour and involved two trucks travelling during the height of the commuter rush hours. In an earlier fallen pole case, where the telephone company failed to remove or secure the hazard for three hours and where, as here, the initial accident was not caused by someone for whose conduct N.E.T. was responsible (see White v. Mugar, 280 Mass. 73, 181 N.E. 725 [1932] ), it was held that there was insufficient evidence to warrant a finding of negligence on the part of the defendant. Reidy v. New England Tel. & Tel. Co., 288 Mass. 46, 49, 192 N.E. 218 (1934). Another court has reached a similar result. Compare Schmeling v. Ott, 388 N.W.2d 195, 198 (Iowa Ct.App.1986) (refusing to adopt "all due haste" standard to remedy dangerous conditions; applying instead "reasonable time" standard). Finally, even if N.E.T. had responded with more haste, Edison had not completed its portion of the work. The testimony of Edison's supervisor, Moore, that N.E.T. could not perform any work until the electric company's crews completed their tasks was uncontroverted.

In the present case, there was no evidence that the jointly owned utility pole was in a dangerous or defective condition prior to Seligman's collision. Nor was there any evidence for the jury to infer that N.E.T.'s response time--approximately one hour after notice of the accident was received--was less than reasonable. Contrast Kelly v. Springfield, 328 Mass. 16, 18, 101 N.E.2d 352 (1951). We therefore reverse the judgment against N.E.T.

The case against Edison presents a different question. Edison contends, and we think correctly, that the plaintiffs were unable to come up with any direct evidence that any member of the repair crew lowered the wires. Direct evidence has been described as evidence which, "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Johansen v. NCR Comten, Inc., 30 Mass.App.Ct. 294, 299-300, 568 N.E.2d 611 (1991), quoting from Randle v. LaSalle Telecommunications Inc., 876 F.2d 563, 569 (7th Cir.1989). Rolanti attempted instead to show, first, that Edison had been working on the wires just before Cunningham arrived and, second, that trucks as large as Cunningham's had passed under the wires after Seligman's accident. Short of something so implausible as an Edison employee acknowledging that the wires were lowered just before Cunningham's trailer passed beneath (or being observed so doing by another), the process of the jury arriving at an ultimate finding of such negligence required their consideration of circumstantial evidence. So it was Rolanti, himself, who recalled that Edison's employees were "working on the pole or wires while [he] was directing traffic"; and Graham, in his testimony, noticed wires "lower than usual" on his arrival minutes before Rolanti was injuredS and, lastly, the driver of a vehicle immediately behind Cunningham stated that, just prior to the crack and sparking of the wires, Edison people were there.

An inference is an important means by which a party may satisfy his burden of persuasion sufficiently to transfer the burden of going forward to the other party, who may be in a better position to know certain facts essential to the case. Bean v. Security Fur Storage Warehouse, Inc., 344 Mass. 674, 676, 184 N.E.2d 64 (1962)....