Illingsworth v. Boston Electric Light Co.

25 L.R.A. 552, 37 N.E. 778, 161 Mass. 583, 1894 Mass. LEXIS 244

Opinion

Field, C. J.

The exceptions recite that the court ruled that there was no evidence for the jury, and ordered a verdict for the defendant. The questions argued relate to the liability of the defendant on the evidence, under. Pub. Sts. c. 109, § 12, and St. 1883', c. 221 ; under St. 1890, c.' 404, § 1; and at common law.

There is no evidence of any liability under Pub. Sts. c. 109, § 12, and St. 1883, c. 221. Hector v. Boston Electric Light Co., ante, 558.

We have no occasion to consider whether it was the intention of St. 1890, c. 404, to give a private person a cause of action for any violation of the first section of that statute, if, in consequence of such violation, such person suffers damage in his person or property. The only provision of that statute which it is contended applies to this case is the requirement that such a corporation as the defendant should suitably and safely attach its wires to strong and sufficient supports, “ and insulate them at all points of attachment.” This must mean at the points of attachment to the supports. The provision probably relates to the pins or insulators, or other equivalent devices, by which electric wires are usually attached to supports. There is no evidence recited in the exceptions of any defect in the insulation of the wires of the defendant at the points of attachment to the support.

There was evidence of “ two bad joints ” on these wires about twelve or fifteen inches from the frame to one arm of which the defendant’s wires were attached. These joints “ were not taped or insulated,” but “ the rest of the wire was insulated.” We infer that this is evidence that these joints never had been insulated in any manner. As the evidence was that “ the plaintiff’s hands were severely burned by the electricity,” it was competent for the jury to find that the plaintiff’s hands had touched a wire or wires of the defendant. On all the evidence in the case we think they might have found that his hand or hands touched the defendant’s wires at one or both of the joints where the wire was not insulated. It is true that a witness for the defendant, an electrical expert, testified “ that this accident might have happened if the wires of the defendant had been in as good condition as skill and knowledge could have made them,” but the jury might have disbelieved this testimony, or, if they believed it, might also have believed that although such an accident was possible under certain conditions if the wires had been properly insulated, yet that it was much more likely to happen if the wires were not insulated. The same witness testified “that a person taking hold of a perfectly insulated wire would not receive sufficient electricity to injure him.”

The evidence that a bill was rendered by the defendant to the city of Boston, and was paid by the city, “ charging said city a proportionate part of repairing the roof upon an adjoining building, where there was another frame of the defendant, and from which the wires of the defendant and said city extended to and were fastened upon the defendant’s frame where the plaintiff was injured,” we think was properly admitted. It had some tendency to show that, by some arrangement between the defendant and the city of Boston, the city was paying a part of the expenses of maintaining the structures on buildings to which the wires of the defendant and those of the city were attached, and that therefore the city of Boston attached the wires of its fire alarm service to the defendant’s structure on the building numbered 114 Sudbury Street, where the accident happened, by permission of the defendant, and under some contract or arrangement whereby the city was to pay the defendant something for the maintenance of such structures.

The question then is, When two business corporations, or two persons under some agreement between themselves, use the same structures, owned by one of them, as supports for separate lines of wire used by each for the transmission of dangerous currents of electricity, what is the duty at common law which each owes to the other in regard to the care each must take to have its wires in a reasonably safe condition at or near the structures where the servants of the other have occasion to go, in the usual course of business, and where they must come near to or in contact with the wires? Such servants, when so employed, are more than mere licensees, taking advantage, for their own benefit or that of their employer, of the passive acquiescence of the licensor. If they are licensees at all, the license until it is revoked is coupled with an interest. The two corporations or persons have in a sense a common interest in the maintenance and use of the structures to which the wires of each are attached, and each, we think, should be under the same obligation to the other as persons having common rights in a place or passageway are under to one another not negligently to place a dangerous substance on the common territory, where it reasonably may be anticipated that others having common rights may be injured by it. The purpose for which the structures are used renders some danger from electrical currents inevitable, but the danger ought to be made as small as is practicable by the exercise of reasonable care.

In the absence of any agreement on the subject other than what is involved in the permission of the owner of the structures to the other to use them in common for the support of electric wires on paying some compensation, we are of opinion that the duty of the owner of the structures is to exercise reasonable care in seeing that his wires are kept, so far as is practicable, in a safe condition at such places as the servants of the other are expressly or impliedly licensed to go in performing their duties with reference to the wires attached to such structures. Under this rule, there was evidence for the jury that the defendant was negligent in leaving two joints of its wires without insulation within twelve or fifteen inches of the frame on which the plaintiff, in the course of his duty as a person employed in the fire alarm service of the city of Boston, was required or expected to go. We of course express no opinion upon the liability of the city for the condition of the wires of its fire alarm service.

It is contended that the plaintiff took the risk, or that he offered no evidence that he was in the exercise of due care. As the plaintiff was not a servant of the defendant, it cannot be said that he took the risk unless he knew of it and voluntarily exposed himself to it, and none of these things is necessarily to be inferred from the evidence. Whether he was in the exercise of due care, we think, was for the jury. It appears that the wires of the defendant were insulated, except at these two joints, and the plaintiff reasonably may have expected that the wires about the frame were entirely insulated, and we cannot say, as matter of law, that he was negligent in not seeing the uninsulated condition of these joints. It does not necessarily show negligence that his pliers got caught on another wire, although this may have been the cause of his injury. It was not necessarily negligent that he reached round with his hand to clear the pliers, although it may be that by this movement his hand was extended farther from the post to which the arms were fastened which held the wires than otherwise he would have extended it. We cannot say, as matter of law, on the evidence, that his hand or hands in this movement did not touch one or both of the joints, and that this was the cause of the injury.

The exceptions recite that “ the undisputed evidence was that mere contact with one electric light wire, even though bare and uninsulated, would cause no injury, unless other conditions supervened,” but there is no contention that these other conditions do not often occur. The fact that other conditions must occur to render contact with such wires dangerous, if it be true, cannot excuse the defendant from taking reasonable care, in view of all the circumstances likely to occur, to have its wires properly insulated at points where the servants of another have the right derived from the defendant of coming near to or in contact with the wires. We are of opinion that the questions of the defendant’s negligence and of the plaintiff’s due care were for the jury. Exceptions sustained.