Carr v. Manchester Electric Co. , 70 N.H. 308 ( 1900 )

The plaintiff's grounds of complaint against the Manchester Electric Company are (1) that they were negligent, in not instructing him as to the increased danger in working upon pole lamps in wet weather, and (2) that they were also negligent in allowing the wires of the two companies to come in contact on Marion street.

The first ground is untenable. The negligence complained of would be immaterial unless it caused the plaintiff's injury. If the alleged enhanced danger to him on account of dampness was not adequately provided for by the cut-off switch, whose office and purpose it is, as he confessedly well knew and understood, to entirely cut out the current of electricity from the lamp, and so render it. safe for cleaning and trimming under all conditions, we find no evidence whatever that dampness, if it appreciably existed at the time of his injury, would have rendered the shock to the plaintiff any different than it was, or that any parts of the mechanism outside the lamp were actually charged at that time. Suppose, however, that they were: it is certainly as likely, in any reasonable view of the evidence, that the plaintiff's shock was received from the charged lamp, the risk of which he assumed, as from the mechanism; and "an action for negligence cannot be maintained when the evidence fails to disclose an open, visible connection between the injury and the negligence alleged, and when the facts proved are equally consistent with a theory of the accident that would discharge the defendants as with one that would charge them." Deschenes v. Railroad, 69 N.H. 285, 291.

The second ground is untenable also. Knowing, as he admittedly did, the risk of injury from the wires of his employers coming in contact with the wires of other electric companies, and thus becoming charged and alive, the plaintiff, as before stated, manifestly assumed that risk as between himself and his employers; and, moreover, they had guarded him absolutely against that source of danger by means of the cut-off switch, the use and purpose of which it is admitted he fully understood. Irrespective, therefore, of the question of the plaintiff's own negligence, we are of opinion that the motion of the Manchester Electric Company for a nonsuit should have been granted.

As against the Union Electric Company, the plaintiff assumed no risks of his employment. They stood as strangers to each other, and, as between them, the only rule to be applied is that of ordinary care. This rule required that the plaintiff should make use of such means of protection and safety as were within his control to guard against the risks that were known to, or reasonably to be apprehended by, him from the negligence of the company. Among those risks was that of their wires becoming crossed with those of his employers. But he was not only apprised of that danger and understood it, — he was also equipped with a complete safeguard against it by turning the cut-off switch. It is true he testified that he was attempting to do this when he received the shock, and therefore my brethren are of the opinion that the question whether he exercised ordinary care in his way and manner of doing it was properly left to the determination of the jury. I do not think so. On the contrary, it seems to me that the case discloses no evidence which would justify a finding by the jury of reasonable care on his part. In my opinion, the evidence was fairly susceptible of but two conclusions: First, that the plaintiff attempted to trim the lamp without turning the switch, as he had frequently done before, or, second, that standing in the unnecessary and reckless way he did, "on the west end of the cross-arm, with one foot in front of the other, supporting himself entirely by placing his knee against the pole, and without attempting to protect himself by the use of his right hand, he reached around with his left," by the globe and between the metallic standards of the lamp, to turn the switch, which was on the south side of the lamp, and thereby received the injury for which compensation is sought. And upon either of these conclusions it follows that there can be no recovery against the Union Electric Company, because a person injured by his want of ordinary care, or by the joint operation of his own and another's negligence, is remediless. Nashua Iron and Steel Co. v. Railroad,62 N.H. 159, 161, 162.

The conditions mentioned in the question to which exception was taken evidently referred to dampness, and the exception must therefore be overruled.

Judgment for the Manchester Electric Company, and against the Union Electric Company.

YOUNG, J., did not sit: the others concurred as to the Manchester Electric Company.