Wetherby v. Twin State Gas & Elec. Co.

• Decision Date: 19 January 1910
• Citation: 75 A. 8,83 Vt. 189
• Court: Vermont Supreme Court
• Parties: WETHERBY v. TWIN STATE GAS & ELECTRIC CO.

75 A. 8

83 Vt. 189

WETHERBY

v. TWIN STATE GAS & ELECTRIC CO.

Supreme Court of Vermont. Brattleboro.

Jan. 19, 1910.

Exceptions from Windham County Court; Willard W. Miles, Judge.

Action by Charles W. Wetherby, administrator of George Wetherby. deceased, against the Twin State Gas & Electric Company. There was judgment for plaintiff, and defendant excepts. Reversed and rendered.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Chase & Daley, for plaintiff.

Gibson & Waterman, Clarke C. Fitts, and Harold E. Whitney, for defendant.

HASELTON, J. The action is case, and was brought by the plaintiff as administrator of the estate of George Wetherby, deceased, to recover by virtue of P. S. 2839, 2840, for the benefit of the next of kin of the intestate, the pecuniary damages suffered by them in consequence of his death claimed to have been caused by the wrongful neglect of the defendant. The case was tried by jury. Verdict and judgment were for the plaintiff. The defendant excepted.

The defendant owns an electric power plant at West Dummerston, and transmits power therefrom into the village of Brattleboro over three wires. These wires carry a current of from 10,000 to 11,000 volts, and are carried across the West river, not far from its conjunction with the Connecticut, along the side of a railroad bridge of the Central Vermont Railway Company under an arrangement with such company. The bridge is an ordinary iron bridge. The manner in which the wires are supported as they cross the river is this: Wooden arms are fastened to what may be called the cross-beams of the bridge in two or three places. Glass insulators are attached to these arms, and the wires are attached to the insulators. Of the three wires the one nearest to the bridge is two feet and three inches or thereabouts out and away from any part of the bridge structure, and a little further than that from the outside of the bridge trusses, which extend up and constitute a side of the bridge. The wires are a foot and a half apart. Just inside the trusses of the bridge on each side there extends for the length of the bridge a wooden timber construction, called by the witnesses a "guide rail" or a "guard rail," Which presents an upper surface of about eight inches in width. There is no planking or other covering over the railroad ties, and one crossing the bridge on foot must step from tie to tie or else walk along one of the guard rails just referred to.

August 25, 1907, the intestate, a boy of 13 years, with other boys as companions, went onto a bridge of the Boston & Maine Railroad near by and then onto the bridge in question. The plaintiff's evidence tended to show that while on this bridge the intestate sat upon the guard rail opposite one of the cross-arms referred to, and that while sitting there he called to another boy, or to the other boys, to come and sit with him, and that then in some way he changed his position and got where, by some motion, his foot touched the inside wire, and he was almost instantly killed by an electric shock. In order to have made this contact possible, he must have got considerably down and away from the guard rail in the direction of the wire. The plaintiff's claim as to the intestate's position is based on the testimony of one of the boys, Jesse Bailey, and is that at the time of the accident the intestate sat straddling the crossbeam to which the arm that held the wires was fastened. Possibly Bailey's testimony should be construed to mean that the intestate had got down from the guard rail and out onto the cross-beam and was sitting on it with his legs hanging down on either side at the time when he called out. But it is immaterial how this is. Whatever his exact position was, and however or when he got into it, he was at the time of the accident far enough down from the guard rail and out towards the nearest wire so that he could and did touch the wire with his foot.

There is a highway bridge across the West river very close to the railroad bridge in question, and, as has been said, one crossing the railroad bridge must step from tie to tie or walk on a guard timber or rail of about two-thirds of a foot in width. But the plaintiff claims that, there was evidence tending to show a use of the railroad bridge for foot travel, and that both the railroad company and the defendant were cognizant of such use. The plaintiff claims that there was evidence of an implied license, an invitation, to the public to make such use of the bridge and of knowledge on the part of the defendant of such permissive use. In this regard evidence of a certain path leading up onto the railroad track at one end of the bridge and of two posts is much relied on. The plaintiff claims, in substance, that the case of Seymour v. C. V. R. Co., 69 Vt 555, 38 Atl. 236, is in point here. But if it is to be assumed that, with the knowledge of the defendant, the bridge was used for foot travel by licensees or quasi licensees of the railroad company, such assumption does not affect the question of liability here. In any view of the evidence, the position and doings of the intestate at the time of the accident were not incidental to or related to the use of the bridge for passing and repassing on foot.

The plaintiff further claims that the railroad company permitted people to use the bridge to fish from and as a place from which to view the surrounding scenery, and permitted children to romp and play upon the bridge, and that such uses were matters of common knowledge, and that the defendant was chargeable with knowledge thereof. One witness, William O'Brien, testified that he had several times got down where the intestate was at the time of the accident; that, when out on that arm, he could look down into the river, and a good many times could see fish in the river; that men had been there with him, and that they had taken turns in getting out on the cross-arm so far that they let go of the bridge; that they did this one at a time. Another witness, Russell H. Briggs, testified that he had seen boys on the bridge, that he did not know that he had seen them playing, but that he had seen them when he thought they were fishing. William F. Mixer testified that frequently, in the spring when the water was high, he had seen men and boys on the bridge fishing. Jesse Bailey, a boy who was with the intestate at the time of the accident, testified that he had known the bridge for about six years; that he had passed over the bridge a few times, always in company with others; that once he had seen a man sitting on the edge of the bridge fishing; and that he had seen boys throwing stones from the end of the bridge. Edwin Wilson, a boy of 14 years, testified that he had seen people sitting down on the bridge, and that he had sat down on it himself; that he had played on the bridge; and that the boys had played "follow the leader" and performed various feats on the bridge, its piers, braces, and arms, but not on the arms that held the electric wires. He testified that the boys did these things up there "lots of times." The above is a condensed statement of all, or substantially all, the evidence tending to show a use of the bridge by men and boys as a place for fishing or playing or climbing, and there is nothing in this evidence, nor anywhere in the transcript which is referred to, that tends to charge the defendant or the railroad company with knowledge of these various doings. There is no witness who testifies that any of these things were done while any officer or any employé even of the railroad company or of the defendant company was around.

According to all the testimony on the point, the bridge was some 40 feet above the water, and if it be assumed that, with the knowledge of the defendant the bridge was used as a footpath, there was nothing in the location of the defendant's wires which tended to render such use dangerous, whatever dangers might in other respects have...