Rott v. Blackstone Val. Gas & Elec. Co., 9397

• Decision Date: 25 June 1954
• Docket Number: No. 9397,9397
• Citation: 106 A.2d 251,82 R.I. 111
• Parties: ROTT et al. v. BLACKSTONE VALLEY GAS & ELECTRIC CO. Ex.
• Court: Rhode Island Supreme Court

Page 251

106 A.2d 251

82 R.I. 111

ROTT et al. v. BLACKSTONE VALLEY GAS & ELECTRIC CO.

Ex. No. 9397.

Supreme Court of Rhode Island.

June 25, 1954.

William R. Goldberg, Pawtucket, for plaintiffs.

Worrell & Hodge, Lee A. Worrell, Providence, for defendant.

CONDON, Justice.

This is an action of trespass on the case for negligence which was heard by one justice of the superior court on the defendant's demurrer to the declaration and successively by another justice thereof on demurrer to a new amended declaration in two counts. To a ruling of the latter justice sustaining the second demurrer, the plaintiffs excepted. The case is here on their bill of exceptions containing only such exception.

The plaintiffs' original declaration was in one count. The defendant demurred thereto on the ground of duplicity and on five other grounds substantially to the effect that the declaration did not state a cause of action. This demurrer was overruled as to those grounds but was sustained as to the ground of duplicity. A new amended declaration setting out the same allegations as in the original declaration, but in two counts, was thereupon filed by leave of court. The defendant demurred to each count on the same grounds as alleged in its first demurrer, excepting only the ground of duplicity. At the hearing on this demurrer plaintiffs contended that the decision of the justice who heard the first demurrer was the law of the case and was binding upon all other justices of the superior court.

That contention was overruled and plaintiffs now contend that the trial justice erred in thus refusing to be bound by the decision on the first demurrer. In support of such contention, they rely principally upon our discussion of the doctrine of the law of the case in Payne v. Superior Court, 78 R.I. 177, 80 A.2d 159, 82 A.2d 167. However, in the circumstances of the case at bar that doctrine is clearly not applicable. The plaintiffs by availing themselves of leave to file a new amended declaration elected to eliminate the original declaration from the case. Ilczyszyn v. Mostecki, 43 R.I. 523, 112 A. 785. We recently held that such action causes the original declaration 'to drop out of the case together with all matters incidental thereto'. Conway v. Marsh, 79 R.I. 254, 87 A.2d 499, 500. In the instant case, therefore, the trial justice was not required to abide by a ruling of another justice of the superior court on a declaration which, as was said in Neri v. Rhode Island Co., 42 R.I. 229, 107 A. 84, ceased to be part of the record.

Under their exception plaintiffs make a further contention that the trial justice erred in ruling that the allegations in each count failed to state a cause of action. The following statement is a substantial summary of the facts alleged in each count. On May 10, 1951 while he was guiding a sewer pipe attached by a steel cable to the boom of a movable crane plaintiffs' intestate was instantly killed by reason of the boom coming in contact with certain overhead high tension electric wires belonging to defendant. The accident occurred on Tidewater street in the city of Pawtucket in this state where a public sewer was being constructed by the intestate's employer, Gil Wyner Co., Inc., a construction company. Prior to the accident construction had been in progress for several months along that street. On certain occasions during that period, to defendant's knowledge, the boom had come in contact with defendant's wires and hence it had been apprised of the damager to employees of the construction company by reason of the proximity of its high tension wires to the boom. After it had such knowledge defendant took no steps to remove or diminish the danger.

The first count in substance avers that in view of the premises it was defendant's duty to shut off the power in the wires and this it failed to do, by reason whereof plaintiffs' intestate was killed. The second count avers that it was the duty of defendant in the premises to insulate its wires; that this it failed and neglected to do; and that the death of the intestate was the direct result of such negligence.

The defendant's demurrer to each count is based on the following grounds: '1. That the duty set forth in each count of said amended declaration is not a legal duty which the defendant owed to the plaintiffs' intestate. 2. That it was not the duty of the defendant to take any action whatsoever to remove or diminish the danger complained of in each count of said amended declaration. 3. That the negligence alleged in each count of said declaration is not the breach of any duty owed by the defendant to the plaintiffs' intestate. 4. That neither count of said amended declaration contains or alleges sufficient facts to show a breach of any duty the defendant may have owed to the plaintiffs' intestate. 5. That neither count of said declaration states a cause of action.'

If any of those grounds are good plaintiffs' declaration would manifestly fail to state a cause of action. The trial justice found that the first count did not allege the breach by defendant of any legal duty. He held that it did not appear from the fact averred therein that it was defendant's duty to shut off the power on its Tidewater street wires during the times the crane was being used on that street. We agree with that view. These high tension wires were alleged to be 50 feet above the level of the street. At such a height the danger inherent in the transmission of high voltage electricity through such wires was in ordinary circumstances so remote as to preclude any neglect of duty to persons in the customary and normal use of the street.

Conceivably, however, by reason of extraordinary circumstances known to defendant or of which it could be reasonably charged with notice, a state of extreme emergency could arise when, regardless of all considerations but the protection of human life, it would become defendant's duty to suspend the transmission of electricity through its wires. See Kent v. Interstate Public Service Co., 97 Ind.App. 13, 168 N.E. 465, and Philbin v. Marlborough Electric Co., 218 Mass. 394, 105 N.E. 893. Suffice it to say that the facts alleged in the first count do not even remotely suggest such a grave emergency. Therefore the trial justice did not err in sustaining the demurrer to that count.

The second count poses a different problem. The duty to insulate high tension wires at a particular place along a public highway might well arise and become incumbent upon defendant by reason of a combination of circumstances tending to make such wires, if uninsulated, especially dangerous to one lawfully upon the highway. However, the trial justice held that there was no absolute duty to insulate wires carrying electricity and he found that the facts alleged did not indicate that defendant's wires on Tidewater street were in any respect defective or not at a proper height. He also found that the allegations of previous accidents and defendant's knowledge thereof were insufficient to show that it had time to insulate before the happening of the accident to the intestate. He further found that since the wires were in plain sight of the operator of the crane it was his act of bringing the boom in contact with the wires that was the proximate cause of...