303 Mass. 258 | Mass. | 1939
This is an action of tort to recover upon a declaration in two counts, one for the death (G. L. [Ter. Ed.] c. 229, § 5), and the other for the conscious suffering of the plaintiff’s intestate, hereinafter referred to as Fulton, alleged to have been caused by the defendant’s negligence. The answer is a general denial, that the intestate was contributorily negligent and that he voluntarily assumed the risk. The case was tried to a jury, which returned a Verdict for the plaintiff on each count. The defendant’s exceptions are to the denial of its motions for a directed verdict on each count and to portions of the judge’s charge.
The jury could have found that Fulton was in the general employment of the defendant but that he worked occasionally, with the defendant’s permission, for one Pike, an electrical contractor. On February 21, 1936, which was Fulton’s “day off,” he was employed by Pike to change a lamp of a floodlight, and, while at work, received an electric shock which caused his death. Pike had received an order from the superintendent of the playgrounds of the city of Newton to change the lamp. The floodlight in question was located upon the cross arm of a pole, hereinafter referred to as pole #2, which stood upon land, owned by the city of Newton, between Crystal Lake and Lake Avenue, a street not far from the water’s edge. Directly across Lake Avenue in a westerly direction from pole #2, and at the intersection of Lake Avenue by Lakewood Road, there was another pole, hereinafter referred to as pole #1. Southeasterly from pole #2, at the water’s edge, there was a third pole, hereinafter referred to as pole #3. Pole #2 was erected in 1911, and the floodlights were first placed upon it by Pike in 1928. The record does not disclose by whom poles #2 and #3 were erected. In
Secondary wires carrying one hundred fifteen volts ran from pole #1 to the lower cross arm on pole #2 and supplied the current for the floodlights which were erected upon the top cross arm of pole #2, where the primary wires were dead ended. The primary wires had no connection with the floodlights. From the lower cross arm on pole #2 the secondary wires ran down the pole to a “switch meter box,” four or five feet above the ground, and thence back to the floodlights.
On the day in question, Fulton climbed pole #2 to change a lamp and when next observed, his body was hanging over a cross arm. His body was removed within one half to three quarters of an hour, and was thereupon examined by a physician who found burns upon both hands and small hemorrhages on the forehead. There was no breath, heart sounds or pulse. Artificial respiration was applied without result. A physician testified that in his opinion the current passed from one hand to another “presumably through the
The defendant contends that even if it was negligent, the plaintiff cannot recover for mere negligence for the reason that the status of Fulton was that of a bare licensee. The record does not disclose either the ownership of pole #2 or by whom it was erected. It stood upon land owned by the city of Newton. There was evidence from a division head of the defendant, whose division included the Crystal Lake area, that he was familiar with the electrical appliances in that area; that pole #1 was known to the Edison company as pole 248/1 on Lakewood Avenue; that there were telephone wires upon it, and pole tags bearing the names of the telephone company and the defendant; that pole tags are put on all “Edison poles”; that there were letter markings on the top cross arm of pole #1 under the wires, but that pole #2 had no name tag on it “as far as he knew,” and the wires on that pole had no tags on them. The evidence goes no farther than to disclose a pole erected upon land of the city of Newton, which supported wires designed solely for the purpose of transmitting current for the use of the city. It also appears that when the primary wires, for purposes of the pageant, were extended to poles #2 and #3, on which
The defendant’s duty to Fulton if he was an invitee was to use reasonable care to keep pole #2 in a reasonably safe condition for his use according to the invitation, or at least to warn him against any dangers attendant upon such use that were not known to him or obvious to an ordinarily intelligent person, and either were known or in the exercise of reasonable care should have been known to the defendant. Murphy v. Avery Chemical Co. 240 Mass. 150, 152, 153. Kelley v. Goldberg, 288 Mass. 79, 81. Palmer v. Boston Penny Savings Bank, 301 Mass. 540, 542. The jury could, have found that necessary work upon the floodlights was rendered unsafe by the presence upon pole #2 of the high tension wires which were in an improperly insulated condition, and that such condition was either known or should have been known to the defendant.
But the defendant contends that its duty did not go to the extent of requiring it to warn Fulton, an experienced lineman, of the conditions existing on pole #2. There was testimony of two witnesses, called by the plaintiff, tending to show that, to an experienced lineman, certain lettering on the cross arm of pole #1, from which the primary wires ran to pole #2, these letters being visible from the base of pole #2, and the position of the primary wires on these two poles, would make it obvious that there were high tension wires on pole #2, and that, therefore, the place in which Fulton was at work was dangerous. But there was other evidence that the absence of tape on the ends of the wires would tend to indicate “that the lines perhaps might be dead.” See Illingsworth v. Boston Electric Light Co. 161 Mass. 583, 588. The jury was not required to accept the testimony of the two witnesses called by the plaintiff and
We think that the evidence justified a finding that Fulton suffered consciously. There was testimony of a witness that she came out of the house at the southwest corner of Lakewood Road and Lake Avenue, before Fulton’s body had been removed from the pole, and heard moans and groans; that the groans continued for seven minutes or more and she saw him “wiggle for four to five seconds”; that she went back into the house and came out again, and then heard the moans and groans, and “observed movement in the plaintiff’s intestate both times she came out.” It appeared that the moans were heard at a distance of one hundred fifty feet. There was testimony from a physician that in his opinion if Fulton “wiggled and groaned for four or five seconds,” he suffered consciously, and that “if
It could not have been ruled as a matter of law that Fulton was guilty of contributory negligence. The defendant contends that he should have worn rubber gloves which would have protected him from injury; and also, that the evidence required a finding that he should have known of the danger — that the use of his own eyes should have apprised him of any danger. From the statement of Pike, who installed the floodlights, it appeared that he had been in the electrical business for over twenty years, that he had climbed the pole at other times, and that he had no idea that it had “high tension current.” From what has already been said in discussing the duty of the defendant, we think it was a question for the jury to determine whether Fulton should have observed any danger, and, if he did not, whether, upon the permissible findings, such failure constituted contributory negligence. The only evidence bearing upon the question whether Fulton wore gloves came from a witness who climbed the pole after the fire department had put a ladder to the top cross arm. During the removal of the body a fireman stood on the top cross arm that carried the high tension wires. The witness testified that “he did not see any rubber gloves on the man . . . .” There was further testimony that rubber gloves are tested to withstand ten thousand volts. From this it is contended
The defendant excepted to that part of the judge’s charge that dealt with the alleged violation of the provisions of G. L. (Ter. Ed.) c. 166, §§ 30, 31, 34. Section 31 provides, in substance, that a corporation shall plainly mark each pole supporting wires or cables containing wires over streets with the name or initials of the owner of such pole, and that wherever cross arms or other appliances for the support of wire or cables belonging to different owners are attached to the same pole, every such cross arm or other appliance shall plainly be tagged or marked with the name or initials of the owner thereof. Section 34 provides that poles or other structures used to support lines for the transmission of electricity shall be insulated in such manner as to protect employees and other persons from accident. Section 30 provides, among other things, that a corporation shall remove all wires, the use of which is abandoned. The judge, after reading these sections to the jury, instructed it that poles and their structures should be properly marked and that the defendant had an “obligation . . . and a duty to
Said § 34 in express terms applies only to the insulation of poles and other structures used to support lines for the transmission of electricity. It says nothing about the insulating of wires. There was no evidence that the pole or cross arm thereon was not properly insulated, and it was error for the judge to leave to the jury any possible question as to the defendant’s duty as arising under said section.
The jury must have understood from the judge’s charge that, if the defendant failed to mark pole #2 with its name or initials, this would be evidence of negligence and of a breach of the defendant’s duty to Fulton. We have already discussed the absence of evidence as to the ownership of pole #2, but if we assume that it belonged to the defendant, and even though there was no evidence to show that it was marked with the name or initials of the defendant, nevertheless, we are of the opinion that it was error to leave any question to the jury as to the negligence of the defendant based upon the violation of said § 31 in connection with pole #2. It is true that a violation of a statute is evidence of negligence as to all consequences that the statute was intended to prevent. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501, 516. In order to be the basis of liability, the evidence must establish causal connection between the violation of the statute and the injury to a plaintiff, and a “Violation of law is regarded as a cause of injury only when the forbidden element in the conduct alleged to be negligent is the effective cause of the damage sought to be fastened on the defendant.” Wainwright v. Jackson, 291 Mass. 100, 102. Compare Santa Maria v. Trotto, 297 Mass. 442. We are unable to see any causal connection between the failure of the defendant to mark pole #2 with its name or
Inasmuch as there must be a new trial, we do not consider it necessary to deal with the other exception of the defendant. At a new trial of the case the question may not arise, or, if it does, it may not be presented again in the same manner as it is now before us.
Exceptions sustained.