Hussey v. Boston & Maine Railroad

Peaslee, C. J. This is a suit to recover damages for causing the death of the plaintiff’s intestate, while he was employed by the defendant to work upon and about electrical appliances. The accident occurred in an electric power station. The arrangement of the premises consisted in part of a row of transformers, located under a *237 balcony which was supported on iron posts. At the rear of two of these posts, and attached to the under side of the balcony, there were ordinary electric light sockets. Another socket was located on the southerly post, and switches controlling the current to all these sockets and to others about the station were on the same post. High tension wires, in groups of three each, ran from other appliances across the aisle in front of the transformers and were attached to the bottom of the balcony. One of these wires was southerly of the post carrying the switches, and not under the balcony. The wires were slightly above the socket on the post and the socket could not be reached by a man standing on the floor. The decedent was an experienced lineman, and had done other kinds of work upon electrical appliances. It was a part of his duty to make repairs in this station, but there was no evidence that he had done any considerable amount of such work before the accident. On the night in question, repairs on one of the northerly transformers were required. Another employee, who had charge of the electrical control, shut down one of the rotaries. The decedent and his helper procured the needed tools, an extension light and a stepladder. The ladder was placed near the southerly post. Hussey then placed the lamp attached to the extension cord near where the work was to be done, and laid the cord along the aisle to the post. Shortly thereafter there was an electrical discharge, and Hussey was found lying dead near the post. His hat, his head and the palms of his hands were burned and the light cord was lying across his body. The dust was missing from the bottom of the high tension wire southerly of the post, and an insulator at that point was freshly chipped, indicating that the discharge had been at that place. The defendant’s motions for a nonsuit and a directed verdict present the usual questions relating to negligence of the defendant and care of the decedent. As the defendant had not accepted the provisions of the employers’ liability act, the defense of assumption of risk is not available here. Laws 1911, c. 163, s. 2; Spilene v. Company, 79 N. H. 326. There is abundant evidence of the defendant’s fault. The location of the light socket in close proximity to the high tension wires, when it might well have been placed two feet lower and within easy reach of a man standing on the floor, is sufficient upon this issue. Osman v. Company, 78 N. H. 597. The defendant seeks to avoid the consequences of the creation of such a situation by the claim that there was no occasion for Hussey to use this particular socket, and that he *238 ought to have used one of those under the balcony, near the place of his work and where the high tension wires had been deadened by the stopping of the rotaries. There are several sufficient answers to this proposition. Hussey had never been concerned with the management of the machinery, and even the man who had was confused and indefinite in his testimony as to what wires would or would not be deadened by the amount of shutting down that was done on the night of the accident. The sockets under the balcony were above the high tension wires, and a crossing of one of these, when charged, with the extension light cord would be dangerous. It did not appear that Hussey knew of these sockets. His helper did not, until after the accident. Whatever socket he used, he would probably have to go to the post to turn the switch. In view of these facts it cannot be said as matter of law that the defendant ought not to have anticipated the course of conduct pursued by Hussey, or that Hussey was not acting reasonably and within the scope of his employment when he sought to attach the extension light cord to the more distant socket on o the post. There was sufficient evidence of the defendant’s fault, and of the causal relation of that fault to the accident. The defendant relies strongly upon certain cases dealing with the unauthorized or unexpected use of premises and appliances by an employee. McGill v. Company, 70 N. H. 187; Morrison v. Company, 70 N. H. 406; Straw v. Company, 76 N. H. 35; Richardson v. Company, 77 N. H. 187. These cases all turn upon the proposition that no reasonable man would have anticipated the use which the servant made. There is no such situation here. Upon the issue of the decedent’s fault, what has already been said disposes of the claim of negligence as matter of law in his choice of a socket to be used in his work. The chief reliance of the defense is put upon the proposition that, conceding the propriety of using this socket, one in the exercise of reasonable care would have avoided contact with the high tension wire. It must be concluded that the decedent’s death was caused by his head, covered by his hat, coming in contact with or close to the charged wire. It must also be found that the work he was doing could have been done without his getting any part of his person within the danger zone. The question thus presented is whether a workman employed in a dangerous situation can be thought to be acting with ordinary prudence when he fails to avoid a known and avoidable danger. It is manifest that no dogmatic rule of law can *239 answer this query in all cases. Under some circumstances, failure to avoid must be found to be negligent. Collins v. Hustis, 79 N. H. 446. Under others, it becomes a question for the jury. Boody v. Company, 77 N. H. 208; Nawn v. Railroad, 77 N. H. 299; Hurlich v. Railroad, 81 N. H. 284. The earlier cases afford but little aid toward the solution of such a problem, because in them the servant’s assumption of risk was so frequently a controlling factor. The provisions of the employers’ liability act, abolishing in this class of cases the defense of assumption of risk and changing the burden of proof upon the issue of contributory negligence (Laws 1911, c. 163, s. 2), have created a new situation. Recovery is no longer denied because the servant knowingly encounters a danger. It must also appear that there was negligent conduct involved in such encounter. Unless the proof is conclusive that the result could not have happened except through the servant’s negligent inattention, the defendant was not entitled to a directed verdict. In the present case there is no direct evidence to show how or why the decedent came within the danger zone. Cause for the contact is not established. Burns upon the decedent’s hat, head and hands tend to prove that his hands were on the metal post, presumably in the act of attaching the lamp to the socket, and that his hat touched or came near the charged wire. Why his head was within the danger zone is a matter left to conjecture. It may have been through negligent inattention to the situation. It may have resulted from a cause like slipping or losing his balance on the ladder, or from something else causing unintended movement. The testimony of an expert as to a brush discharge, capable of transmission over a substantial space and tending to cause involuntary action, suggests another solution of the problem. The evidence of the decedent’s habitual care in the presence of charged wires tends to negative the idea of negligent contact. Parkinson v. Railroad, 61 N. H. 416; Greenwood v. Railroad, 77 N. H. 101. Any of the other suggested causes would, or might, negative the imputation of his negligence. None of these propositions is conclusively disproved by the evidence. It may be conceded that none of them is proved, and still the decision on the motion to direct a verdict must be against the defendant. Whether the balance of probabilities is against them, so that a jury should find that it was affirmatively shown that none of them existed, is not a matter to be decided here. Nawn v. Railroad, 77 N. H. 305. *240 Where the facts surrounding the accident are fully disclosed, the statutory change as to burden of proof upon the issue of contributory negligence does not affect the question of law presented by a motion for a directed verdict. But when there is a lack of evidence, the change is important upon the issue here. Collins v. Hustis, 79 N. H. 446. The distinction is vital in the present instance. The whole case as to what did or did not occur just before the accident depends upon inference. In some respects the inference is inescapable — e. g., that the decedent received a shock from the charged wire. A jury would not be permitted to find otherwise. In other respects it is left in much uncertainty. Before the change as to burden of proof upon the issue of contributory negligence, this might have been fatal to the plaintiff’s case. But now that the defendant must rely upon the conclusive and inclusive nature of its own proof, rather than upon the incompleteness of the plaintiff’s case on this issue, such uncertainty is not a ground for taking a case from the jury. Sevigny v. Company, 81 N. H. 311; Robinson v. Company, 79 N. H. 398. It is argued that the stepladder should have been placed on the easterly side of the post, where the socket was located, and that if this had been done there would have been no accident. The ladder was placed at the side of the post next the aisle, as one might naturally set it up. The post was a small iron affair, and reaching a quarter of the way around it, or even to the opposite side of it, would be an easy matter. There is not enough in this circumstance to charge the decedent with negligence as matter of law. It does not conclusively appear that ordinary men would not have acted as he did. Miner v. Franklin, 78 N. H. 240. If this were a suit by the railroad to recover from the administratrix for damage to its appliances brought about through the decedent’s negligence, it would be manifest that the plaintiff would not be entitled to a directed verdict. A verdict “is not ordered for the plaintiff because the defendant offers no evidence. It is only when from undisputed facts the only inference that can reasonably be drawn conclusively establishes the plaintiff’s case that he is entitled to a verdict as matter of law.” Williams v. Duston, 79 N. H. 490, 491. In the present case, the inference of decedent’s fault was not the only one suggested by the evidence. But the evidence hardly goes beyond suggestion. It may well be doubted whether the state of the proof was such as to permit that or any other inference as to the details'of his conduct to be drawn at all. *241 The facts shown are equally consistent with a theory of the accident which excludes the decedent’s fault as with one which establishes it. “... in the absence of some evidence as to the fact, a judicial trial does not substitute an unfounded guess or conjecture for the legal proof which the law requires.” Deschenes v. Railroad, 69 N. H. 285. It would seem that any attempted conclusion upon the issue of the decedent’s conduct would be “pure speculation.” Chabott v. Railroad, 77 N. H. 133, 137. It is urged that Hussey had equal knowledge of the situation with the defendant, that they are held to the same standard of care and had the same freedom of action. From this it is argued that if the defendant was negligent so also was Hussey. The argument ultimately comes to this: A servant cannot recover for injuries resulting from voluntarily encountering a known danger. The proposition is in a large measure sound as a common law doctrine, and cases applying it are very numerous. The matter is fully considered in Kambour v. Railroad, 77 N. H. 33. One object of the employers’ liability act was to change this rule. Laws 1911, c. 163, s. 2. The abolition of the doctrine of assumption of risk is not to be evaded by a holding that encountering a known danger is contributory negligence, as matter of law. The adoption of the argument here advanced would retain the doctrine in every instance where it was applicable before the statute was enacted. “The legislative mandate being that the doctrine of assumed risk shall not apply, it is the duty of the court to determine the rights of the parties as though that doctrine had never existed, rather than to defeat the legislative intent by so interpreting the discarded doctrine as to retain it in force and nullify the statute.” Oulette v. Company, 77 N. H. 112, 115. Assumption of risk being eliminated, the only remaining question involved in the theory here advanced is whether one who knowingly and voluntarily encounters a known danger is barred from a recovery based upon the wrongful creation of the danger. The matter received elaborate consideration in Kambour v. Railroad, 77 N. H. 33, and it was decided that “the facts that they knew of the danger incident to the condition of which they complain and voluntarily encountered it are not, in and of themselves, conclusive of their right to recover, unless the danger is so great that the ordinary man would not have done what they did. In all other cases these facts are merely evidence to be considered with other relevant facts on the issue of their care.” Ib., 49. “The mere fact that she voluntarily encountered a known danger does not establish the proposition that she was guilty *242 of contributory negligence.” Prichard v. Boscawen, 78 N. H. 131, 133. To the same effect is Boody v. Company, 77 N. H. 208, a case in every way comparable to this upon the question now under consideration. Demond, Woodworth, Sulloway & Rogers, for the motion. The doctrine of these cases is not to be rendered ineffective by a holding that proof of due care in the use establishes like care in the creation of the situation. There may be reasonable occasion to act in a dangerous situation which there was not reasonable occasion to create. It is not the mere creation of the situation on the one hand and the use of it on the other that settle the question of liability. The reasonableness of the conduct of each party is also to be considered. If this were-not true, the decisions just cited would be unsound. All the circumstances under which each party acted are to be taken into account. Excessive cost of different construction may be shown to justify the course adopted by the defendant. Taylor v. Railway, 48 N. H. 304, 316. The justification may be negatived by showing that the cost would not be large or unreasonable. Spilene v. Company, 79 N. H. 326, 330; Haskell v. Railway, 73 N. H. 587. So too, in considering the conduct of the servant, the opportunities to avoid the situation and the reasonable demand for action on his part are to be taken into account. The contention that in this case the servant knowingly and without reasonable occasion encountered the danger is not conclusively shown, for the reasons before stated. It is not certain that he knew of the other outlets, or that there was no danger from charged wires at those points, and he may have had occasion to use the appliances on the post to switch the current on. Since there was some evidence that the defendant’s conduct was unreasonable, and the proof was not conclusive that the decedent’s conduct was not reasonable, the case was one for the jury and the defendant’s motions were rightly denied. The exceptions to expert evidence, upon the ground that there was no evidence of the existence of the conditions assumed, is unavailing, “since the jury were expressly instructed that a verdict for the plaintiff must be based upon evidence and not upon conjecture.” Brito v. Company, 79 N. H. 163, 164. Exceptions overruled. All concurred.