Romana v. Boston Elevated Railway Co. ( 1914 )

Sheldon, J.

This bill of exceptions is of a kind that is becoming too frequent, — so frequent as to suggest that if persisted in it may call for drastic action to be taken by the court of its own motion. It is such a bill as ought not to have been presented or allowed. It calls for undue effort on the part of the court to pick out the few important facts from the undigested mass of irrelevant and impertinent facts with which they are covered up. See Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 215 Mass. 381, 387, and cases there cited; Isenbeck v. Burroughs, 217 Mass. 537. That there was no necessity for so voluminous a bill is manifest from a reference to the briefs of counsel, in each of which the material facts and evidence and the questions of law raised thereon are set forth with ample fulness but in a very much smaller compass than was taken for the exceptions. We shall not attempt in dealing with such a bill to do more than state the conclusions which we have reached.

defendant. The situation was such, and was known by the defendant to be such, as the jury could find, as to bring those children in passing by the pole into close proximity to it and very likely into actual contact with it. The defendant through Sullivan had notice that they were exposed to imminent danger from the escape of electricity It is a matter of common knowledge that electricity is a highly dangerous force or substance, and the resulting danger to life or limb could be taken to have been known to the defendant. It is as if the defendant for its own purposes lawfully had kept there a store of gunpowder or of dynamite, safe while kept-as it should be, and then, with knowledge that circumstances had arisen which caused serious danger of an explosion, had permitted or licensed people to pass in that immediate vicinity without giving them any warning against the danger to which it thus consented that they ignorantly should expose themselves. The force which the defendant knew was liberating itself in and around the pole was one which the defendant had brought thither for its own use. It was harmless while confined to the system of wires which the defendant had provided for it. It was no less dangerous than a wild and ferocious animal would .have been, if allowed to escape from those wires into the pole. The defendant had notice that the electricity was escaping, and yet neither, withdrew the license which it had given for the use of the path, nor made any effort to guard against the danger which it was creating. Under such circumstances the jury could say that its negligence was wanton or reckless. Its conduct in doing nothing to withdraw the license which it had given, or to check the escape of electricity which constantly was creating a new danger and one more than ordinarily serious, or to give any warning to those who were using the path by its license, could be found to be intentional conduct through its authorized representative, such as had a natural tendency to injure others, which was known or ought to have been known to the defendant, accompanied by a wanton and reckless disregard of its probable consequences. Banks v. Braman, 188 Mass. 367 and 192 Mass. 162, note. Yancey v. Boston Elevated Railway, 205 Mass. 162, 171. Davis v. Boston & Northern Street Railway, 214 Mass 98, 101. We of course do not mean to say that the facts were as we have above stated, or even that such findings would have been in accordance with the weight of the evidence. It is enough for us that there was some evidence to sustain them. It follows that the case was for the jury.

The charge to the jury was a very able and careful' one. But it allowed them to find that the plaintiff was upon the defendant’s premises by its implied invitation. We cannot say that the verdict rendered for the plaintiff did not rest upon such a finding; and therefore there must be a new trial.

The defendant has no right of exception to the refusal of the judge to give its ninth request. If given, it would have been necessary for the judge to explain to the jury the'rule of responsibility for manslaughter caused by criminal negligence; and that might have tended to confuse rather than to help them. The instructions given them as to what would constitute wanton or reckless negligence were full and accurate.

It is not necessary to discuss the other matters which have been argued. It does not seem likely that the questions will arise again in the same way. It is enough to say that we find no material error other than what has been stated.

Exceptions sustained.