342 Mass. 31 | Mass. | 1961
These are four actions of tort to recover for the conscious suffering and'death of James Lucciardi and for personal injuries to Ambrose Knight, sustained when an electric current ran from a high voltage wire to a cable of a crane with which they were working. Knight and Irene Lucciardi Clough, administratrix of the estate of James Lucciardi, each bring an action against the New Bed-ford Gas and Edison Light Company (light company) and the New England Telephone and Telegraph Company (telephone company). In a trial to a jury verdicts were returned for the administratrix of Lucciardi against each defendant on the death counts alleging negligence. Verdicts were likewise returned for Knight against each defendant on counts for negligence. The cases come here on the defendants’ exceptions to the denial of their motions for directed verdicts.
The relevant evidence was as follows. In 1951 and 1952 an overpass at Copicut Road in the town of Freetown was being built over the Boston-Fall River Expressway. In December, 1951, two poles which were jointly maintained and used by the defendants were moved from the northerly side of Copicut Road to a point near a temporary road that was being used for public travel during construction of the overpass. In June or July of 1952, at the request of the Commonwealth’s assistant resident engineer (Keating), the telephone company moved the poles to permanent locations designated by Keating on the northerly side of the overpass, one about twenty-five feet east of the easterly abutment of the overpass, and the other about twenty-five feet west of the westerly abutment. The span of the overpass was about 210 feet and the distance between the poles was about 270 feet. Between July 29, 1952, and August 1, 1952, the light company attached two uninsulated copper wires bearing a current of 4,400 volts to cross arms on the tops of the poles.
The masonry work on various overpasses on the expressway (including the Copicut Eoad overpass) was let out by the general contractor to one Paltrineri as subcontractor. This work involved the placing of coping stones (facing or ornamental stones) “on the outside of . . . [the] bridge.” The coping stones “had to go on the overpass before the general contractor could pour the sidewalls.” On September 8, 1952, Paltrineri brought his crew and equipment (which consisted of a mobile crane mounted on a chassis) to the Copicut overpass. The general contractor “was anxious to get his part of the job done so he was after Paltrineri to get ... [a] particular stone [weighing 350 pounds] in . . ..” Paltrineri’s crew consisted of Cronin, who operated the crane, Knight, Lucciardi, and three others. The crew was using this crane to place the coping stones in position. The men would guide a stone to its proposed position and the crane operator would lower the stone into place by loosening the cable. The crane had a boom fifty feet in length, the radius of which “could be lowered or raised by moving levers. ’ ’ All members of the crew were experienced men “who had worked around construction work and they had seen where you have to avoid electric wires.” Before the work began on September 8, Paltri-neri noticed that the overhead wires “seemed to be directly over the place where the stones were to be set . . . [and thought] that it would be impossible to set the stones in a normal manner with a high boom without touching the wires.” Accordingly, he instructed the crew to use a “flat boom” in “spotting the stones.” Knight testified in sub
At the time of the accident Lncciardi, Knight, and Anthony Cedrone were guiding a 350 pound stone into position. The stone was attached to a chain which was hooked onto the end of the steel cable of the crane that extended from the pulley located at the top of the boom. The crane operator was moving the stone with a “flat boom” to get under the wires, which were not more than twenty-five to thirty feet above the overpass.
When the men fell, the crane operator saw that the cable was not more than twelve to fourteen inches from the wire and that an arc of electricity extended from the wire to the cable.
Both defendants contend that the evidence failed to estab
The gist of the plaintiffs’ argument is that the light company was negligent in failing to guard the workmen “against . . . [the] danger of electrical shock.” More specifically, it is contended that both the “defendants were negligent in moving back the poles and wires and energizing the wires with a high voltage . . . when they knew or should have known that the overpass was only partially completed, and should have reasonably anticipated that cranes or other machinery would be used by the workmen. ’ ’
We are of opinion that the cases ought not to have been submitted to the jury. There was no indication that the manner in which the poles were erected, the height of the poles, the lack of insulation, or the failure to post warning signs was a departure from the practice in common use, although, of course, that fact would not be conclusive on the issue of negligence. See Corthell v. Great Atl. & Pac. Tea Co. 291 Mass. 242, 243-244, and cases cited. It is clear from the evidence that the existence of the wires was open
There are situations, no doubt, where an electric company may have a duty to warn, but a duty to warn does not arise “unless the person on whom the duty would be cast has some reason to suppose that a warning is needed.” Cadogan v. Boston Consol. Gas Co. 290 Mass. 496, 499-500. See Grebenstein v. Stone & Webster Engr. Corp. 205 Mass. 431, 437; Hyland v. Ceaver, 312 Mass. 535, 539; Hannon v. Hayes-Bickford Lunch Sys. Inc. 336 Mass. 268, 272. The light company could have assumed that those engaged in the construction of the overpass would recognize the open and obvious danger inhering in the wires, and would either request that the electricity be shut off or use equipment which would not come close to the wires. See Hayden v. Paramount Prod. Inc. 33 Cal. App. 2d 287, 291; Buell v. Utica Gas & Elec. Co. 259 N. Y. 443; Luketich v. Duquesne Light Co. 389 Pa. 87; Wilson v. Texas Elec. Serv. Co. 265 S. W. 2d 624 (Tex. Civ. App.). The place where Knight and Lucciardi were injured would not be dangerous to persons performing the work in a prudent and careful manner; it became dangerous solely because the crane was operated imprudently — a situation that the defendants could not reasonably be held to anticipate. That fact rather than any negligence on the part of the defendants was the proximate cause of the accident.
The plaintiffs contend that the failure to observe the light company rule requiring employees of the company to report to their supervisors conditions in the areas where high voltage wires were to be installed was evidence of negligence. In appropriate circumstances ‘ ‘ a violation of rules previously adopted by a defendant in reference to the
Similarly the plaintiffs contend that the defendants did not comply Avith statutory requirements for the installation of the wires and that this was evidence of negligence.
Since, as we hold, the plaintiffs failed to establish negligence on the part of either defendant, there is no need to decide to what extent, if any, the duties of each defendant with respect to the poles and wires might be different.
The defendants ’ exceptions to the denial of their motions for directed verdicts must be sustained and judgment in each case is to be entered for the defendant. G. L. c. 231, §122.
So ordered.
There was evidence, however, that after Paltrineri left the job, and before the accident, the crew decided that it would be easier to do the work with a high boom instead of a flat one. Thus they “raised the boom” (so that it was higher than the wires) and “drifted the stone.”
There was evidence that the electricity would are if a metal cable came as close as one eighth to one quarter of an inch from the wire, and that once the arcing occurred it would follow the cable, if moved away, for a distance of several inches to a foot.
General Laws c. 166, § 22, provides in part: “A company desiring to construct a line for such, transmission [of electricity] upon, along, under or across a public way shall in writing petition . . . the selectmen of the town where it is proposed to construct such line for permission to erect or construct upon, along, under or across said way the wires, poles, piers, abutments or conduits necessary therefor. ... [T]he board of . . . selectmen may by order grant ... a location for suehl line .... After the erection or construction of such line, the board of . . . selectmen may, . . . upon petition of the company without notice or hearing, by order . . . direct an alteration in the location of the poles . . ..” The accident occurred on September 8, 1952. The wires were moved and energized between July 29, 1952, and August 1, 1952. A petition was not submitted to the board of selectmen of the town of Freetown until September 15, 1952, and permission to relocate the poles was not given until October 6, 1952.