189 Mass. 1 | Mass. | 1905
This is an action of tort by the administrator
of the estate of John P. Mahan to recover for personal injuries to and for the death of his intestate, which are alleged to have been caused by the defendant’s negligence while the intestate was in the exercise of due care. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the judge to rule as requested by it that the plaintiff was not entitled to recover and to direct a verdict for the defendant, and also to the admission of evidence.
The accident occurred on November 4, 1899. The plaintiff’s intestate was at the time a lineman in'the employ of the Newton and Watertown Gas Light Company, and was at work putting a cross arm upon a pole belonging to that company in Beacon Square, Watertown. While so at work an electric current passed into and through his body causing his death and the injuries complained of. The plaintiff contends that the current came from the contact of the trolley wire of the defendant with an electric light wire belonging to the gaslight company,
There was testimony tending to show that, just below the place where the plaintiff’s intestate was engaged in putting up the cross arm, there were two other cross arms carrying wires belonging to the gaslight company. The upper arm carried two wires belonging to the so called commercial circuit, and the lower carried wires belonging to the incandescent circuit which supplied the street lights of the town. There was testimony tending to show that when the plaintiff’s intestate mounted the pole there was no current passing over any of these wires. Plugs had been pulled out of a cut-off box near by which had the effect, it was testified, of rendering the commercial wires dead wires from there to the end of the circuit, which distance included the pole on which the plaintiff’s intestate was working. The incandescent circuit had been shut off at the works at 12.30 A. M., and an arc circuit, which was the only other one operated by the gaslight company, had been shut off at the works at between five and 5.30 A. m. The cut-off box was examined half an hour after the accident and was found with the plugs out and in good order. There was no dispute that the man was killed by the passage of an electric current through his body, and the testimony above referred to and other testimony tended to show that the current could not have come from the works of the gaslight company. The accident did not occur till a car of the defendant company approached the scene, and at the time of the accident there was testimony tending to show that the car was only a short distance away. There also was testimony tending to show that as the car approached the trolley pole lifted the trolley wire very near to the electric light wires, and “one witness testified that the trolley wire was shoved up against the' electric light wires.” In view of this and other testimony we do not see how it could be said or ruled that there was no evidence that the current which killed the plaintiff’s intestate came from the trolley wire of the defendant. There was testimony to the effect that the cut-off box contained a fuse that would have burned out if at any time before the accident any heavy current had
The defendant further contends that the plaintiff’s intestate was not in the exercise of due care. He was not a regular lineman. He had been working for the gaslight company two weeks when killed, and a year and a half before had worked for it about six weeks. So far as appears this had been the extent of his experience in the electric light business. The superintendent of the gaslight company testified that the linemen were to look out for their own safety and that a notice to that effect was posted at the works, and the men also were instructed by the foreman. He also testified that there was a rule that the linemen should treat every wire as a live wire, and that the company provided rubber gloves for men to use in handling dangerous wires. But there was evidence tending to show that the deceased had no reason to believe when he mounted the pole that any of the gaslight company’s wires which it carried were then dangerous, and if they were not there was no occasion for him to use rubber gloves, even if such gloves had been provided by the company and were there for use, of which latter fact there was slight, if any, evidence. The rule that linemen should treat every wire as a live wire was made in their interest and for their safety as well as in the interest of the company, and was intended as a general standard of conduct for the men in working about the wires of the company. It would be going too far to say that in no case and under no circumstances would a lineman be justified in treating a wire as a dead wire because of the rule. That would be making the rule itself a conclusive standard of negligence. Whereas it was at most only one circumstance to be considered with others. The relative position of the trolley
There remain two questions of evidence, one, already referred to, of the customary use of guard wires, and the other that in this part of the country, according to the usual construction, a trolley wire would be lifted between three and four inches by the passage of a car along the track. We construe the evidence relating to the former as meaning simpl-y that there was an appliance known as a guard wire in common use for the purpose of preventing contact between trolley wires and other wires. So construed the evidence was clearly admissible. Dolan v. Boott Cotton Mills, 185 Mass. 576, 579, and cases cited. In regard to the other matter we think that the evidence was admissible as tending to support the plaintiff’s contention that the accident was caused by a contact between the trolley wire and the electric light wires. Exceptions were taken to the admission of other evidence, but they have not been argued and we treat them as waived.
Exceptions overruled.