Philbin v. Marlborough Electric Co. , 1914 Mass. LEXIS 1392 ( 1914 )

Sheldon, J.

The only question presented to us is whether there was upon the legally admissible evidence an issue for the jury of the due care of the plaintiff’s intestate and of the negligence of the defendant;

The jury could find the following facts: The intestate was engaged under the direction of his father in removing browntail moths’ nests from a tree upon his father’s land. He was standing in the tree, near its trunk, on a large branch. A little outside of this land, the defendant maintained a line of wires carrying currents of electricity near to and through the ends of the branches of the tree, these branches overhanging the adjoining land. The wires carried electricity of a very high voltage, to wit, a circuit of thirteen thousand volts, which was extremely dangerous to life. One at least of these wires, that nearest to the tree in which the intestate was at work, was uninsulated. A current of electricity escaped from this wire into the ends of the branches of the tree, which were moist with melted and unmelted snow, passed to the intestate where he was standing and gave him a shock. The effect of this was to give a jerk to the pole which he had in his hands, by means of which he was clipping off the moths’ nests at the ends of the branches. This caused the end of the pole, shod with metal and furnished with a metal cutter from which a wire ran to the handle by which the intestate operated it, to move or fall so as to come into contact with the wire. Immediately the current of thirteen thousand volts passed though the pole or the wire into and through the intestate’s body, causing his death.

The intestate was not a trespasser, even if he did reach out his pole beyond the boundary of his father’s land, to cut off moths’ nests at the end of a branch. He was doing the work under the direction and in the right of his father, who was required by law to remove the moths’ nests from the tree. Sts. 1905, c. 381, J§ 1, 6; 1906, c. 268, §4; 1908, c. 591, § 2. See also Sts. 1907, c. 521; 1909, c. 263; and 1910, c. 150. The whole of the tree, including the branches which overhung the adjoining land, was the property of the intestate’s father, even though the adjoining ■ owner might have lopped off such branches to the extent that they overhung his property. Unless the adjoining owner did this, it was the father’s duty to remove the nests from such overhanging branches, and thus abate what the statutes above referred to had declared to be a nuisance, just as he would be entitled to the acorns or other fruit that grew thereon. See the cases collected in 1 Cyc. 791, et seq., and 28 Am. & Eng. Encyc. of Law, (2d ed.) 539. The case at bar as to this comes under the rule that was applied in Parker v. Barnard, 135 Mass. 116; Proctor v. Adams, 113 Mass. 376; and Winslow v. Gifford, 6 Cush. 327.

The intestate was engaged in lawful work, in a place where he had a right to be, and was carrying on his work in the usual manner. It does not appear that he had notice or knowledge of the danger to which he was exposed in consequence of what the defendant had done. There was sufficient evidence of what his conduct was to take the case out of the range of mere conjecture, and we need not consider such cases as French v. Sabin, 202 Mass. 240; Hamma v. Haverhill Gas Light Co. 203 Mass. 572; Lydon v. Edison Electric Illuminating Co. 209 Mass. 529; and Ridge v. Boston Elevated Railway, 213 Mass. 460. It could be found that he was in the exercise of due care. McCrea v. Beverly Gas & Electric Co. 216 Mass. 495.

There was evidence also of the defendant’s negligence, even if its act in putting its wires in this place was not a mere trespass. It placed its wire, uninsulated and carrying a current of thirteen thousand volts, in such close proximity to these branches as to create a danger of electricity passing on to them whenever they were moistened with snow or rain, as they were liable to be at any time. It knew, or must be presumed to have known, of the statutes above referred to and of the danger of just such an accident as did happen. A jury well could say that its conduct was negligent. That similar wires carrying similar currents are not insulated elsewhere, or that the cost of insulation would have involved greater expense in the transmission of power, is not decisive in the defendant’s favor. The safety of human life does not necessarily yield to the desirability of furnishing light or power as cheaply as may be to the users thereof. Here also the principle is settled against the defendant by the case of McCrea v. Beverly Gas & Electric Co., ubi supra.

The evidence to the admission of which the defendant excepted was competent upon these issues. We have stated already the findings which could have been made thereon.

In accordance with the stipulation of the report, judgment must be entered for the plaintiff in the sum of $2,500.

So ordered.