Nadeau v. Inhabitants of Taunton

141 N.E. 608, 247 Mass. 104, 1923 Mass. LEXIS 1234

• Court: Massachusetts Supreme Judicial Court
• Decided: November 28, 1923
• Status: Published

Opinion

DeCourcy, J.

The plaintiff’s intestate, Alfred Nadeau, was killed at about 5:10 p.m. on December 1, 1920, by coming in contact with a charged wire maintained by the municipal lighting plant of the defendant. Prior to the accident the wire had parted: one end hung suspended from a tree on the easterly side of Bay Street, and the other lay in the gutter, for approximately twenty feet, concealed by water and dead leaves. Nadeau was on his way home from work. It was dark and raining at the time. He crossed Bay Street, carrying an umbrella over his head; stepped upon the broken wire which was concealed in the gutter; the steel shank of his umbrella came in contact with that portion which hung suspended from the pole; and he fell to the ground, with his feet resting in the gutter in contact with the wire.

The only exception is to the judge’s denial of the defendant’s motion for a directed verdict on the second count, based upon the ground that there was no evidence of conscious suffering on the part of the intestate. It is not disputed that there was a case for the jury on the issues of his due care and the defendant’s negligence. With reference to the question whether Nadeau consciously suffered as the result of coming in contact with the wire, we have the following: The medical examiner testified to a burn from electricity between the thumb and first finger of the right hand which extended to the bone; that his feet were burned from contact with the wire, and his body was blackened. Six eye witnesses heard him “ groan; ” some of them as many as six times, while he was falling, or after he went down. Another testified “ when he fell he cry out and he cries two or three minutes afterwards, and then he stiffened right up,” and that he made an outcry or sound for “ two or three minutes after he fell on the wire.” This same witness illustrated how the body of Nadeau “ shook a bit ” as he lay on the ground. Some of the • witnesses illustrated the “ groans,” by making the sound “ Mum, Mum,” “ hum, hum,” or “ Mm, Mm; ” but the record does not purport to reproduce the utterances as they were described to the jury by the witnesses. We cannot say that the way in which these “ groans ” were described to the jury by the witnesses did not indicate that pain and suffering were present to the consciousness of the dying man, and felt by him. The case is a close one on this issue; but in the opinion of a majority of the court there was enough to entitle the plaintiff to go to the jury, even asstiming that all the evidence is set out in the record. And it is expressly stated in the exceptions that the judge’s charge “ explained fully and accurately what was meant by conscious suffering.” Pierce v. Cunard Steamship Co. 153 Mass. 87. Knight v. Overman Wheel Co. 174 Mass. 455, 463. Martin v. Boston & Maine Railroad, 175 Mass. 502. Boutlier v. Malden, 226 Mass. 479, 487. Battany v. Wall, 232 Mass. 138.

Exceptions overruled.