Stevens v. United Gas & Electric Co.

• Decision Date: 07 February 1905
• Citation: 60 A. 848,73 N.H. 159
• Parties: STEVENS v. UNITED GAS & ELECTRIC CO.
• Court: New Hampshire Supreme Court

60 A. 848

73 N.H. 159

STEVENS

v. UNITED GAS & ELECTRIC CO.

Supreme Court of New Hampshire. Strafford.

Feb. 7, 1905.

Transferred from Superior Court.

Action by Maurice J. Stevens against the United Gas & Electric Company. Verdict for plaintiff, and cause transferred from the superior court on defendant's exceptions. Exceptions overruled, and judgment rendered on the verdict.

The plaintiff's evidence tended to prove the following facts: On January 8, 1903, the plaintiff was employed by one Frost, an independent contractor, upon the construction of a power house for the defendant, located upon the easterly side of Cocheco street in Dover. The brick walls of the building had been carried up about 20 feet from the ground at the northeast corner, and at that point an outside staging had been erected, which was about 17 feet from the ground. The staging also extended around the building, and was 5 feet wide. Along the street side of the building the defendant maintained upon its land an electric light line, consisting of poles, wires, and cross-arms, which ran obliquely with the wall of the building, and was nearest the building at the northeast corner, at which point the distance in a straight line from the wall to the nearest electric wire was from 5 feet 3 1/2 inches to 5 feet 5 inches. There were two electric light wires attached to a cross-arm upon a pole which stood some 16 feet from the corner. These wires were on the side of the pole farthest from the power house, and were in a place about 4 feet above the floor of the staging. The distance between the wires was from 10 to 12 inches. The staging post at the northeast corner extended above the floor of the staging, and was within 2 inches of the nearest electric light wire. The floor of the staging extended out to the post. There were other smaller wires strung below the electric light wires, and supported by the same poles. The morning of January 8, 1903, was cold and frosty. During the preceding night there had been a light fall of snow. The plaintiff began work that morning by sweeping the snow from the upper staging, and may have performed this work at the northeast corner. The snow and ice were not entirely removed, so that the staging was more or less slippery. After finishing this work he was directed to take boards which were to be handed up to him from the ground, and place them on the staging at the east end. This work was done at such places as he and his associates selected. The boards were passed up to him under the wires at a point on the street side of the staging near the corner. After he had carried away five or six boards he was returning for another, and had reached the corner of the building, some 5 1/2 feet from the corner of the staging. This, he testified, was the last thing he remembered until he regained consciousness in the hospital. His injuries were wholly the result of his hands coming in contact with the defendant's wires at the northeast corner of the staging, upon which there was an electric current of 3.120 volts. After contact with the wires he fell to the ground. The wires had been insulated, but at the time of the accident, and for quite a period before, the insulation was worn off, and near the corner of the staging the wires were bare in places. The accident happened at about half-past 8 o'clock. A fellow workman of the plaintiff testified that just before the accident he was upon the staging, and saw the plaintiff standing very near the edge of the staging at the northeast corner, looking down, as though waiting for a board to be passed up. The witness then testified: "I came right from that way right straight down the run, and when I got to the foot of the run I saw him when he dropped to the ground." The run referred to was an inclined walk extending from the staging and along the side of it to the ground. The witness stated that it was in the neighborhood of five minutes after he saw the plaintiff standing at the corner before he saw him falling, and that he fell off the east end of the staging. Miss Arnott testified that she saw the accident; that "the first thing I saw was some one fall against the wires, throw out their arms, and then he fell to the ground"; that there was a blaze from the wires; that the man remained there a minute or two, and then fell to the ground; and that he fell off the easterly end near the corner, head first. On cross-examination she testified that she saw him falling before be touched the wires, and that he threw up his hands and then fell. Another witness testified that he saw the plaintiff hanging on the wires, with his feet down. There was no other direct evidence of how the accident happened. The plaintiff testified that before the accident he had seen the wires near the staging post; that he knew the wires were uncovered in places near the corner, and that a live wire was dangerous; that he could not tell by looking at the wires whether the current was on or not; that he did not know whether the current was on that morning or not, but understood the wires were used for electric lighting purposes, and did not know they were dangerous at the time. The defendant offered no evidence, but submitted motions for a nonsuit and for a verdict in its favor, which were denied, subject to exception. The defendant also excepted to the refusal of the court to charge the jury according to its requests, and to parts of the charge as given.

James A. Edgerly, George E. Cochrane, Walter W. Scott, and William S. Mathews, for plaintiff. Leslie P. Snow, John Kivel, and Orville D. Baker, for defendant.

WALKER, J. One ground of defense is that the plaintiff assumed the danger of coming in contact with the defectively insulated wires, charged with a high voltage of electricity, while he was engaged in his work near the northeast corner of the building; that, if he did assume that danger as a matter of law, it is unnecessary, and perhaps illogical, to inquire whether the defendant was negligent in maintaining at that point at the time of the accident the wires so charged with electricity, or whether the plaintiff was in the exercise of due care. It may be conceded that if the plaintiff knew and appreciated the danger of his situation, or, in the absence of actual affirmative knowledge upon that subject, if the ordinarily prudent man would have had such knowledge, he cannot recover, however reprehensible the defendant's conduct may have been, and however careful he may have been under the circumstances. It is the general rule that every one who voluntarily takes a particular position assumes the risk of all danger incident to remaining there, of which he either knows, or would know if he used ordinary care. Miner v. Railroad, 153 Mass. 398, 26 N. E. 994. By this is only intended that he assumed the risk of all dangers of the situation that are apparent to his observation, for he does not assume a risk when for any reason he could not be expected to apprehend it. Demars v. Company, 67 N. H. 404, 406, 40 Atl. 002. The defendant claims that the principles of law thus expressed in general language are applicable to the facts of this case, and establish the proposition that the plaintiff voluntarily and knowingly incurred the risk of coming in contact with the charged wires while working near them. In this view, the manner in which the accident occurred, or the degree of care exercised by either the defendant or by the plaintiff, is immaterial. Thomas v. Quartermaine, 18 Q. B. Div. 685; Fitzgerald v. Paper Co., 155 Mass. 155, 158, 29 N. E. 464, 31 Am. St. Rep. 537. In short, the doctrine invoked is the one often expressed or indicated by the maxim, "Volenti non fit injuria." But when this defense is urged as a ground for a nonsuit or for a verdict for the defendant, as it is in this case, it must appear that reasonable men, acting as the triers of the fact, would find, without any reasonable probability of differing in their views, either that the plaintiff knew and appreciated the danger, or that ordinarily prudent men, under the same circumstances, would readily acquire such knowledge and appreciation. The fact of actual or constructive knowledge on the part of the plaintiff must appear, either directly or by necessary inference from the evidence and the uniform experience of men, before the court can order a nonsuit or direct a verdict upon this ground. And this result must follow after the evidence has received a construction most favorable to the plaintiff. Hardy v. Railroad, 68 N. H. 523. 530, 41 Atl. 179. The essential question, therefore, upon this branch of the case, is whether the evidence authorized the jury to find that the plaintiff did not assume the risk.

The plaintiff, who was about 20 years old, was an ordinary laborer about the building. He had had but little experience with the practical operation of electricity. It appeared that he had for a short time run a saw propelled by electricity for sawing wood, and that he had then been told not to touch the wires. He understood that the wires near where he was at work were used to transmit electricity for lighting purposes; he knew that the insulation was worn off from them and was hanging down in places, and that a live wire was dangerous; but he did not know whether the current was on that morning or not, or whether the wires were then dangerous to touch or not. He had received no instructions upon these points. Did he have, or is he chargeable with having, such information in regard to the actual danger he encountered as would preclude the inference, as a reasonable deduction, that he did not voluntarily or willingly assent to the risk occasioned by the high voltage of electricity upon the wires at the time of the accident? Could reasonable men honestly entertain that opinion? It is to be observed that the accident occurred between half-past 8 and 9 o'clock in the morning. There is no evidence that these wires were used for any other...