Wood v. Public Service Co. of New Hampshire, 6405

• Citation: 114 N.H. 182,317 A.2d 576
• Decision Date: 29 March 1974
• Docket Number: No. 6405,6405
• Parties: Linda Abbott WOOD, Administratrix v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE.
• Court: New Hampshire Supreme Court

Page 576

317 A.2d 576

114 N.H. 182

Linda Abbott WOOD, Administratrix v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE.

No. 6405.

Supreme Court of New Hampshire.

March 29, 1974.

Leonard & Harkaway and William J. Groff, Nashua, for plaintiff.

Sulloway, Hollis, Godfrey & Soden and Michael M. Lonergan, Concord, for defendant.

LAMPRON, Justice.

Wrongful death action brought by the administratrix of the estate of James C. Abbott who was electrocuted on September 23, 1967, when a 40-foot extension aluminum ladder he was using at a 'painting bee' at the home of Joseph and Margaret Fuller in Londonderry was in contact with a 7200 volt power line of the defendant, Public Service Company. This action together with a similar one against the Fullers (not involved in this transfer) were tried before a jury following a view. The jury disagreed in both cases and a mistrial was declared by Flynn, J. The company's exceptions to the denial of its motions for nonsuit and directed verdict and plaintiff's exception to the granting of defendant's motion to dismiss her count in strict liability were reserved and transferred in advance of further proceedings.

The main issues presented are (1) whether there was sufficient evidence to submit to the jury the issue of the company's causal negligence particularly because of a lack of expert testimony on the standard of care to be observed by it, and (2) whether the doctrine of strict liability in tort is applicable in these circumstances.

The Fuller house faced on the north side of Griffin Avenue which runs westerly from Griffin Road. There were two other houses on the same side, one about 800 feet easterly of it at the corner of Griffin Road, the other westerly at the end of Griffin Avenue. On the south side there was a house on the corner of Griffin Road, a small ice house directly across from the Fuller home and another house at the end of Griffin Avenue.

The power line in question was strung along Griffin Avenue on four poles. The first was on its south side near the corner of Griffin Road. The line then crossed to a second pole on the north side and went to a third pole next to the Fuller driveway and to a fourth pole to the west. All of these poles weere located in the public right of was except the third pole which was located on the Fuller property some eight feet north of the public way. Between poles three and four the line ran about feet from the front of the Fuller house at a height of about twenty-three feet seven inches above the ground. It carried 7200 volts, an increase from the former 2400 volts, and had been weatherproofed but was not insulated.

The deceased, James Abbott, was given the task of painting the louvers and coping along the front of the house about thirty feet above ground. He was using a 40-foot aluminum extension ladder which was above the power line. He painted without incident during the morning moving the ladder several times with the assistance of John Ferguson who was also painting the front of the house. Ferguson testified, however, that he believed one person could move the ladder and that he probably would have moved it by himself. After lunch, Abbott, Ferguson, and Mooney who also had been painting the front of the house resumed their work. About fifteen minutes later Ferguson saw Abbott descending from his ladder and shortly thereafter he heard a sharp metallic sound and turning his head a he saw Abbott in a frozen position holding the ladder which was in contact with the 7200-volt power line. Thereafter both Abbott and the ladder fell to the ground. He was given mouth to mouth resuscitation to no avail.

A company engaged in the distribution of electric current is bound to exercise due care in the construction and maintenance of its lines. The test of due care is what reasonable prudence would require under the circumstances. Fitzpatrick v. Company, 101 N.H. 35, 37, 131 A.2d 634, 637 (1957); Gelinas v. New England Power Co., 359 Mass. 119, --, 268 N.E.2d 336, 339 (1971); 26 Am.Jur.2d Electricity, Gas, And Steam § 39 (1966). This imposes on the company the duty to use proper care to protect others while in the lawful exercise of their rights. Lawler v. General Elec. Co., Mass., 294 N.E.2d 535 (1973).

Among the circumstances to be considered in establishing the standard of care to be exercised by the company are: the amount of voltage carried in the line; insulation or lack of it; presence or absence of signs or notices warning of the line's dangerous character; its location with relation to adjacent buildings and height above the ground; the line's compliance or lack of compliance with recognized standards or codes for installation; the foreseeability that persons in their ordinary and lawful activities might suffer injury or death from contact therewith. Black v. Public Serv. Elec. and Gas Co., 56 N.J. 63, 265 A.2d 129 (1970); Lawler v. General Elect. Co., Mass., 294 N.E.2d 535 (1973); Restatement (Second) of Torts § 435 (1965); see McCaffrey v. Company, 80 N.H. 45, 114 A. 395 (1920); Annot; 69 A.L.R.2d 9 (1960).

The company maintains that the resolution of these issues presented matters of extreme complexity which required expert testimony to establish the standard of care to be exercised by the utility and to determine whether its negligence caused the death of James Abbott. If the issues involved the physics of electricity or one of its particular characteristics, that of arcing, by which under certain conditions a specified current will jump some distance and injure or kill someone who has not come in contact with the line itself, we would agree with defendant's contention. See Marcotte v. Peirce Constr. Co., 111 N.H. 226, 229, 280 A.2d 105, 108 (1971); Morton's Adm'r v. Kentucky Tennessee Light & Power Co., 282 Ky. 174, 178, 138 S.W.2d 345, 348 (1940). In those instances these scientific issues would be beyond the capacity of men of common experience and knowledge to form a valid judgment by themselves and expert evidence would be required to assist the jury in its decision. Burt v. Aetna Cas. & Sur. Co., 112 N.H. 29, 31, 290 A.2d 49, 50-51 (1972); Blecatsis v. Manchester Gas Co., 103 N.H. 542, 543, 176 A.2d 711, 712 (1961); Jones v. Tucker, 41 N.H. 546, 547 (1860); 2 F. Harper and F. James, Law of Torts § 17:1, at 966 (1956).

The issues in this case were not of such an esoteric nature. They involved the proper location of a power line carrying 7200 volts and the care to be exercised to prevent injury to persons lawfully within its vicinity. That this line carried a deadly current cannot be denied and its voltage had a bearing on the care required by the company to prevent injury. Black v. Public Serv. Elec. & Gas Co., 56 N.J. 63, 72, 265 A.2d 129, 133 (1970); 26 Am.Jur.2d Electric, Gas, And Steam § 42 (1966). This is also true of the fact that the line was not insulated. Henderson v. Kansas Power & Light Co., 184 Kan. 691, 698, 339 P.2d 702, 708 (1959). An engineer employed by the company for eleven years in the planning of systems of distribution of electricity testified that in certain instances a 7200 volt line had been designed with an insulated wire. He further testified that it would have been feasible to do so in this instance at a cost of $300 to $400. It was for the jury to determine whether in the circumstances of this case the expense of insulation was necessary to prevent injury by contact with this wire. Brillhart v. Edison Light & Power Co., 368 Pa. 307, 312, 82 A.2d 44, 47 (1951); see McCaffrey v. Company, 80 N.H. 45, 46, 114 A. 395 (1921).

There was evidence that pole No. 3 formerly located in the public way had been relocated onto the Fuller property eight to twelve feet nearer to the house. This brought the power...