Whalen v. New England Telephone & Telegraph Co. , 228 Mass. 361 ( 1917 )

De Courcy, J.

The plaintiff was nineteen years of age and had had two months’ experience as a lineman. On January 17, 1912, he was ordered by one Slavin to paint five new poles which had just been erected for the use of his employer, the defendant company, and of the Central Massachusetts Electric Company. On each pole were two cross arms; the first one twenty-six and one half inches from the top of the pole and supporting three wires of the electric company, the other about forty-six inches below the upper cross arm and supporting wires of the telephone company. The plaintiff had painted two of the poles and was painting the third in the same manner when he received a shock, fell to the ground and sustained the injuries complained of.

It is now conceded by the defendant that the evidence warranted the jury in finding that the plaintiff was in the exercise of due care, and that Slavin was a superintendent within the meaning of the employers’ liability act. The only question it argues on the merits is that of the negligence of the superintendent. This issue we think was submitted rightly to the jury. There was evidence properly admitted, that the order to paint the poles which Slavin gave to the plaintiff was coupled with an express assurance that the electric light wires on the top cross arm were not charged and were “ always dead until after four o’clock.” The accident happened about twenty minutes before three o’clock. Under the judge’s charge the jury must have found that the statements made by Slavin were in the nature of a direction or command to the plaintiff to do certain work.- That work would bring him near and in contact with the electric light wires, and the plaintiff was induced to perform it by the assurance of his superintendent that the wires were “dead.” As matter of fact at that time the primary wires carried electricity having a potential of twenty-three hundred volts and were dangerous to the plaintiff while properly doing the work ordered. On the evidence the jury were warranted in finding that the order was a negligent one, and that it was given by Slavin within the scope of his authority as superintendent. McPhee v. Scully, 163 Mass. 216. O’Brien v. Nute-Hallett Co. 177 Mass. 422. Lord v. Wakefield, 185 Mass. 214. Carriere v. Merrick Lumber Co. 203 Mass. 322.

The other ground relied on by the defendant is the alleged insufficiency under the act of the written notice given to the defendant. No objection is made to the statement therein of the time and the place of the accident. As to the cause of the injury the notice stated: “The injuries were caused by defective insulation and improper covering of wires upon the cross arms or gains of said pole, said wires being charged or electrified at the time, with electricity or other powerful current which caused William H. Whalen to receive a shock or charge which resulted in his falling to the ground and receiving a broken leg,” etc.

So far as the record discloses, no objection to the notice was made in the trial court. The defendant now seeks to raise it under his first and fifth general requests for rulings, which were, in effect, that upon the pleadings and evidence the plaintiff was not entitled to recover. Assuming that this objection is open to the defendant at this time, we do not think it can prevail. A reasonably correct statement of the facts relating to the cause of the accident was sufficient, without designating as the ultimate cause the negligence of the superintendent. Lynch v. Allyn, 160 Mass. 248. Berube v. Horton, 199 Mass. 421. Nor was it necessary to specify the kind of negligence under one or the other distinct clauses of the statute. Brick v. Bosworth, 162 Mass. 334. Coughlan v. Cambridge, 166 Mass. 268, It was enough that the notice stated, as the cause of the plaintiff’s injury, the electric shock by reason of which he fell to the ground. The notice went further and set out as the cause of that cause "defective insulation and improper covering of wires;” which the jury could find to be correct, as the covering on the wire was found to be burned. But, even if that unnecessary statement were incorrect, the statute provides that the notice “shall not be held invalid or insufficient solely by reason of an inaccuracy in stating the time, place or cause of the injury if it is shown that there was no intention to mislead, and that the employer was not in fact misled thereby.” On this record plainly the court could not rule as matter of law, even if so requested, that the plaintiff intended to mislead the defendant by the unnecessary particularity of the notice, or that the defendant, which through its superintendent was in possession of all the facts, was in fact misled by it. St. 1909, c. 514, § 132, as amended by St. 1911, c. 178. Drommie v. Hogan, 153 Mass. 29. Beauregard v. Webb Granite & Construction Co. 160 Mass. 201.

Exceptions overruled.