W.U. Tel. Co. v. Fitchburg Gas & Elec. Light Co., 11677

• Citation: 137 N.E.2d 459,334 Mass. 587
• Decision Date: 02 October 1956
• Docket Number: No. 11677,11677
• Parties: WESTERN UNION TELEGRAPH CO. v. FITCHBURG GAS AND ELECTRIC LIGHT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 459

137 N.E.2d 459

334 Mass. 587

WESTERN UNION TELEGRAPH CO. v. FITCHBURG GAS AND ELECTRIC LIGHT CO.

No. 11677.

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 7, 1956.

Decided Oct. 2, 1956.

John P. Dunn, Northboro, for plaintiff.

Francis H. George, Worcester, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

These facts could have been found. About 9:30 on the night of June 8, 1946, Loring Corkum was electrocuted when he came in contact with a wire that had fallen from one of a line of poles maintained by the plaintiff in front of the home of one Sage. The Sage property was located on the north side of Westminster Hill Road, a public way running east and west in Fitchburg. The plaintiff's line of poles was located on the same side of the street as the Sage property, and suspended from crossarms thereon were five transmission lines of the plaintiff. Since April 20, 1946, these wires had been disconnected, so that they carried no electric current for a total distance of about three miles from a point some distance east of the Sage property to a point some distance west of the property of one Godley, which was located on the northerly side of Westminster Hill Road nearly a mile west of the Sage property. Across the road from the Sage property the defendant and the New England Telephone and Telegraph Company, hereinafter called the telephone company, maintained a line of poles running easterly and westerly for some distance. At a point almost opposite the Sage property two service wires of the defendant ran across the road in a northerly direction from one of these poles to the Sage house.

The plaintiff, as successor to the Postal Telegraph and Cable Company, the defendant, and the telephone company jointly owned a line of poles which passed the Godley property on the northerly side of Westminster Hill Road. ¹ These poles were owned under a common ownership agreement the pertinent portions of which are set forth in the margin. ² The poles extended for a short distance east of Godley's property and for some distance to the west. Supported by those jointly owned poles and attached to the topmost crossarms thereon were two wires owned and maintained by the defendant. On these poles and below the crossarms just mentioned were other crossarms to which a portion of the three mile section of the plaintiff's inert wires was attached. These wires ran along the northerly side of Westminster Hill Road from Godley's property toward the east on several jointly owned poles and thereafter continued in that direction to and past the Sage property on poles solely owned by the plaintiff.

The accident which caused Corkum's death happened about one hour after a severe electrical storm in these circumstances. One of the defendant's wires carrying about 2,300 volts had become severed during the storm and had fallen upon one of the plaintiff's solely owned inert wires which was below it, so that about 1,100 to 1,300 volts were transmitted from the live wire to the inert wire. The plaintiff's wire thereby became energized throughout its entire length down to and past the Sage property. This occurred at a point on or near Godley's property. And it could have been found that at or near the place where the break occurred the defendant had improperly maintained its wires in that limbs of trees were permitted to be within inches of the severed wire.

The plaintiff's wire thus energized became severed at the point where the accident happened in the following circumstances. At a point opposite the Sage property one or both of the defendant's service wires leading from one of its poles to the Sage house were in contact with the plaintiff's wire. (The pole to which those wires were attached was not one which the defendant owned in common with the plaintiff.) Due to the fact that the plaintiff's wire was then energized the contact with it caused it to burn, break, and fall to the ground. It was in that condition when Corkum came in contact with it and was electrocuted. The defendant concedes that there was evidence that it negligently maintained its pole opposite the Sage property so that its wires sagged and came close to or rested upon the plaintiff's wire.

Corkum's administratrix instituted actions against the plaintiff and the defendant to recover for the death and conscious suffering of her intestate. These actions were settled before trial. Prior to this settlement the plaintiff and the defendant entered into an agreement which provided that each should be free to settle the claim against it for a sum not to exceed $3,850 and that if either party had a claim against the other by virtue of the common ownership agreement 'the amount of said claim shall be the amount of said settlement, together with such expenses as it may be entitled to by virtue of the provisions of the said agreement as amended.' The defendant admitted that it had received timely notice from the plaintiff to undertake the defence of the action brought by Corkum's administratrix, and that it declined to do so. The plaintiff by way of settlement paid Corkum's estate the sum of $3,250 and incurred legal expenses in connection therewith in the sum of $1,227.54. It was agreed that this settlement was a reasonable and prudent one and that the expenses incurred were fair and reasonable. The defendant paid Corkum's estate the sum of $3,850 and incurred legal expenses in the amount of $1,702.34. It was agreed that both sums were fair and reasonable.

The plaintiff in the present action seeks reimbursement from the defendant for the sum paid by the plaintiff to Corkum's estate and for the legal expenses incurred by it. The...