176 Mass. 125 | Mass. | 1900
This is an action brought under St. 1887, c. 270, to recover for the death of the plaintiff’s husband. The deceased was a lineman in the defendant’s employ, and was engaged in suspending a cable of the defendant from a taut wire, when his feet came in contact with an exposed and highly charged wire of another company which had its wires upon the same poles, and he was killed by the shock. The action is based upon the alleged negligence of the person exercising superintendence.
The deceased was in a boatswain’s chair suspended from the taut wire, and a fellow workman drew him along as he fastened the cable. These two were left to do the work themselves, under the charge of a foreman who was standing near the man on the ground. They had worked along from three to four hundred feet from the place at which they were set to work, when they came to a tree; and the accident was due to the insulation of the wire above mentioned having been worn off by contact with the tree. The tree had been burned by the electricity, but the deceased was not likely to see the marks when engaged upon his work, and we assume that the evidence might have been taken to mean that he could not have seen them if he had looked. We assume also that the foreman could have seen them from some points on the ground, although a fair interpretation of the evidence leaves it doubtful whether the marks were more visible from the ground than from the boatswain’s chair. Twigs and foliage had grown from the tree in such a way as to hide them. There was no evidence that the foreman actually knew of the defect or of the marks which might have given warning of it. The judge before whom the case was tried directed a verdict for the defendant, and the plaintiff excepted.
We are of opinion that the direction was right. It was a standing order of the defendant’s that linemen should examine poles before ascending them. The danger from an imperfectly insulated wire is the most characteristic risk which a lineman has to encounter. That general risk the deceased assumed by entering upon his employment. Everybody knows that there always is a chance that the insulation of a wire may become worn off or defective from some cause, and that in a circuit of
There was nothing in the circumstances of this case to shift the risk. The wire did not belong to the defendant, and its dangerous condition was not due to the defendant’s negligence, as in Murphy v. City Coal Co. 172 Mass. 324. The deceased was not sent without warning to a place in the defendant’s control, which was known by it to be dangerous, and which could and should have been made safe or warned against, as in Willey v. Boston Electric Light Co. 168 Mass. 40. The foreman’s order had no special reference to the place of the accident. It was merely a general order to do the work of suspending the cable, given when the work began, between three and four hundred feet away from where the deceased was killed.
There is no evidence that the foreman knew of the danger either when he gave the order or later. Indeed it is plain that he did riot know it, as he went up the pole where the deceased was killed and received a severe shock himself. He did not purport to be guarding the deceased from danger, and his mere presence in the neighborhood did not impose upon him the duty to do so. We may add, although it is not necessary, that if the evidence is taken at all strictly it does not appear that the foreman could have seen the indications on the tree from any place where he was, but merely that there was a place on the ground to which the foreman might have gone and from which the indications might have been detected, a most inadequate reason for holding the defendant.
Exceptions overruled.
