Urban v. Central Massachusetts Elec. Co.

Decision Date02 December 1938
Citation301 Mass. 519,17 N.E.2d 718
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

September 21, 1938.

Present: FIELD, C.


Negligence, Invited person, Licensee, Electricity. Evidence, Relevancy. Practice Civil, Amendment.

On the record, no action could be maintained for the death of a boy who without right, in a playground where he was at the invitation of its owner, climbed to the top of a pole of an electric company that he had not been invited or induced to use and there came in contact with dangerous uninsulated high tension wires supplying electricity to the buildings of the owner of the playground.

A pole located on a playground, carrying high voltage wires, and having spikes therein for use as steps in climbing, did not constitute a dangerous instrumentality or situation placed in the path of a boy lawfully on the playground who would be likely to encounter it.

On the record of an action for death of a boy who was electrocuted when in a playground he climbed a pole carrying high voltage wires, there was no error in excluding evidence of previous use of the pole by other children on the playground.

No abuse of discretion was shown in the denial, at the close of the evidence at a trial, of a motion, presented at the beginning of the trial, to amend the declaration.

TORT. Writ in the Superior Court dated December 3, 1935. The action was tried before T. J. Hammond, J.

J. T. Storrs, for the plaintiff, submitted a brief. J. A. Anderson, Jr., for the defendant.

RONAN, J. The intestate, who was twelve years of age, together with three other boys went to St. Mary's playground in Ware to play football. While they were waiting for some other boys, the intestate climbed nearly to the top of a pole, which was located in the playground, for the purpose of seeing if they were coming. He came in contact with two wires attached to a cross arm upon this pole and received a shock which caused his death. The playground was set up and maintained for the use of the children of the parish of which the intestate was a member, and also for the children who attended St Mary's school, located very near the playground. The pastor of the church that owned the grounds had, at public services, invited the children to use this playground.

The defendant, since the establishment of the playground in 1927, had maintained this pole supporting the two wires, which were attached to the top cross arm and carried an electric current of a dangerous voltage. Neither of these wires was insulated, but both were originally covered with a waterproofing substance to protect them from the weather. This covering had become frayed and rotten, leaving the wires exposed at various places. The pole was twenty-five feet high. Beginning at about two feet from the ground, the pole had spikes alternating on each side and about eighteen inches apart, for use as steps in climbing the pole. The lower cross arm carried telephone wires.

There was evidence that this playground was located in a thickly settled district; that it was frequented by large numbers of children; that about one hundred fifty would play there each day; and that the pole was used, especially by the older children, to avoid being "tagged" as they were engaged in play.

The declaration was in two counts, the second for conscious suffering and the first for the death. It is agreed that there was no evidence of conscious suffering and we are not concerned with that count. A motion to amend the declaration by adding a count for the death on account of "wanton and wilful misconduct" of the defendant was presented to the court at the beginning of the trial. The judge held the motion in abeyance until the close of the plaintiff's evidence when, subject to the plaintiff's exceptions, he denied the motion and granted the defendant's motion for a directed verdict. The plaintiff also saved exceptions to the exclusion of evidence.

The jury, in adopting the view of the evidence most favorable to the plaintiff, could find that the intestate was lawfully and rightfully in the playground, upon the invitation of the owner, for the purpose of enjoying the premises in the manner and to the extent afforded by its facilities, and of playing games and indulging in such other forms of recreation as were usually and ordinarily undertaken by children in a place of this nature. There is, however, no evidence that would warrant a finding that any invitation, express or implied, had been extended to the intestate to climb to the top of this pole and to come in proximity to bare electric wires in order to ascertain if his playmates were on their way to the playground. The intestate was upon the pole for his own convenience. It had not been set up or maintained as an implement of play or as a part of the equipment of the playground. It was not designed for this use and, in fact, it was not being employed for this use by the intestate at the time of his death. Even as against the owner, the plaintiff would have no cause of action based upon such use of this pole by the decedent. He was on a portion of the premises which were not suitable or adapted for play and he was utilizing the pole for a purpose for which it was never intended. Eisenhauer v. Ceppi, 238 Mass. 458 . Landers v. Brooks, 258 Mass. 1 . Cerricola v. Darena, 266 Mass. 267 . Wozniak's Case, 299 Mass. 471 . There was no invitation to use the pole as a vantage point to ascertain the approach of other children to these premises or for any other purpose. Hector v. Boston Electric Light Co. 161 Mass. 558 . Holbrook v. Aldrich, 168 Mass. 15 . Guiney v. Union Ice Co. 225 Mass. 279 . Scanlon v. United Cigar Stores Co. 228 Mass. 481. Coulombe v. Horne Coal Co. 275 Mass. 226 , 230. Lally v. A. W. Perry, Inc. 277 Mass. 463 . Herman v. Golden, 298 Mass. 9 . We, therefore, need not inquire if the boy's presence upon the pole was in the right, if any, of the owner of the playground. See Boutlier v. Malden, 226 Mass. 479 , 490; O'Neil v. National Oil Co. 231 Mass. 20 , 27; Royal Indemnity Co. v. Pittsfield Electric Co. 293 Mass. 4 .

The wires which were supported by this pole supplied the rectory with light and power. It was a reasonable inference that the defendant owned and maintained the pole with the consent of the owner of the playground. These wires were located about twenty-five feet above the ground and at a safe distance for those whose activities were confined to the surface of the playground. Royal Indemnity Co. v. Pittsfield Electric Co. 293 Mass. 4 , 6. The defendant offered no invitation or inducement to anyone using the playground to climb the pole. The intestate was upon the pole without any invitation of the owner. At most he was a licensee and stood in no better relation to the defendant, which had been authorized by the owner to erect and maintain the pole. Murphy v. Boston &amp Maine Railroad, 248 Mass. 78 . Mikaelian v. Palaza, 300 Mass. 354 . The arrangement of the spikes for the convenience of the defendant's employees in climbing the pole could not be construed as an invitation to strangers to go upon...

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