15 Mass. App. Ct. 25 | Mass. App. Ct. | 1982
The complaint for a declaratory judgment in this case was presented to a judge of the Superior Court by a joint motion for summary judgment on a statement of agreed facts. The sole question presented was whether the word “structure,” as used in G. L. c. 149, § 129C, inserted by St. 1969, c. 680, the pertinent parts of which are set out in the margin,
We glean from the statement of agreed facts that the defendant’s business includes the operation and maintenance of overhead lines of wires for the transmission and distribution of electricity. Those wires are carried on poles or towers varying from single poles to elaborate steel lattice work transmission towers. Over the past twenty years the number of men making up the crews which maintain those lines has shrunk to a point that the crews are now made up of only two or three employees. That reduction was due to the increased use of specialized equipment such as bucket trucks. The number of such trucks used by the defendant went from zero in 1962, when the defendant first used them, to sixteen at the time in 1969 when G. L. c. 149, § 129C, was inserted. At that time there were substantially fewer bucket trucks in use for line work than there are today, and much of the line work was still performed by having linemen physically climb the poles or towers supporting the transmission and distribution wires and equipment.
General Laws c. 149, § 129C, is a penal statute and must “be strictly construed” (Commonwealth v. Federico, 354 Mass. 206, 207 [1968]), and any uncertainty resulting from a literal reading of the statute is to be resolved in favor of the defendant. Commonwealth v. Conway, 2 Mass. App. Ct. 547, 552 (1974).
The agreed facts inform us that a bucket truck sometimes has an attachment known as a jib boom which is used by linemen to support live wires while they are working on them. Some trucks also have stabilizing braces or “legs” which, when extended and “planted” on the ground, stabilize the trucks. The trucks may be grounded by various means. We think that none of these capabilities would convert a bucket truck into a “structure” within the contemplation of § 129C.
We hold that a bucket truck is not a “structure” within the meaning of G. L. c. 149, § 129C. The judgment is reversed, and a new judgment is to enter in the same form as the old judgment, except that the second paragraph thereof
So ordered.
“Whoever being engaged in the business of transmitting electricity or installing or repairing live wires or electrical equipment knowingly permits a journeyman or first-class lineman, while on a pole or structure, to work on live wires in excess of seven hundred and fifty volts to ground unless he is assisted on or at the base of each such pole or structure by a journeyman lineman, a fourth-year apprentice, a second-class lineman or a lineman having a title commonly accepted as the equivalent of the
Statute 1981, c. 617, added a sentence to follow the part quoted above, but the quoted sentence was not thereby changed.
This controversy started out in life as a criminal prosecution on a complaint which was placed on file by a judge with the understanding that the parties would seek a declaratory judgment to determine the issue.
In 1980 the plaintiff union and two individuals petitioned the Legislature to amend § 129C to provide that “a structure shall be deemed to include any kind of aerial life [sic] device, including a so-called bucket truck.” The bill was not enacted, and we have not considered it.