Mehan v. Lowell Electric Light Corp.

Loring, J. 1. We are of opinion that the seventh and tenth rulings asked for were rightly refused. The defendant’s first contention in support of these rulings is that there was no evidence showing due care on Mehan’s part even if he had a right to be where he was, and the case comes within such cases as Cox v. South Shore & Boston Street Railway, 182 Mass. 497, and Clare v. New York & New England Railroad, 167 Mass. 39, 40. But it is to be noted that the iron pillar from which Mehan received the fatal shock was but three inches from the engine room floor on which Mehan was standing at the time, and while it is true that the evidence did not warrant a finding that the shock was received before Livesey had passed through the opening made by pushing back the upper bar, it did warrant the finding that it was received within a few seconds after he had done so. The jury were warranted in finding that Mehan and Armstrong helped Livesey in pushing the bar through the socket on the wooden post, that Livesey rushed through the opening so made, with his sand pail, to the regulator in question, some twenty feet frota the bar, and was in the act of throwing the sand on this regulator when Mehan received his shock. If the emergency justified and required Mehan to be where he was, the evidence in our opinion warranted a finding that Mehan was in the exercise of due care. And we are of opinion that the jury were warranted in finding that the emergency did justify and require Mehan to be where he was. The emergency in question was described by Mehan’s superior, the engineer, as follows: “ a report like thunder, only it was not like thunder, and a flash like a flash of lightning. . . . The third regulator from me was smoking, and a little flame coming out of one corner was on the chain cable leading up to the side; it looked like two tapers; the tape insulation was burning.” This happened at 6.45 in the morning, when there were but three persons in the building, the switchboard tender, Livesey, the engineer, Armstrong, and the oiler, Mehan, whose death is the subject of this action. Mehan immediately rushed to the bar, which had to be unscrewed and pushed through the socket before Livesey could get into the electrical enclosure on the floor in question, and Armstrong followed, after seeing to the engine which then was running. The evidence warranted the finding [60] that all three took part in getting the bar out of Livesey’s way. In our opinion the question whether that emergency justified and required Mehan to give the assistance which he gave was for the jury, although he was employed to oil the engines. See Somerset & Cambria Railroad v. Galbraith, 109 Penn. St. 82; Terre Haute & Indianapolis Railroad v. Fowler, 154 Ind. 682; Pullman Palace Car Co. v. Laack, 148 Ill. 242; Sears v. Central Railroad & Banking Co. 53 Ga. 630. This conclusion is fortified by the testimony of Mehan’s immediate superior, Armstrong the engineer, that “ in case of fire as I understood it his duty was to assist in putting it out if possible,” and by the fact testified to by Livesey that there was a fire four or five weeks before the accident here in question, which he (Livesey) assisted in putting out, and “ Armstrong and Mehan were there assisting.” The defendant’s last contention is that no reason is disclosed why Mehan took hold of the post, if he did, and no invitation for him to do so. The post was but three inches away from the engine floor • where the emergency called Mehan, and he might unintentionally have come in contact with it. '2. We are of opinion that the jury were warranted in finding that the defendant was negligent, and that the accident was caused by its negligence. We assume that the defendant was not liable for grounding the iron framework of the switchboard gallery by carrying from it a copper wire to a metal plate buried in the ground, in place of connecting it with the water pipes, because the former method was in common use although not so good a method as the latter. But the jury were warranted in finding that the company knew from the shocks received on the day before the accident by the masons then at work in the basement, that the system in use was not in fact carrying off the electricity which found its way into the framework, and that it was negligent in continuing under these circumstances without giving notice of the danger, and that that negligence caused Mehan’s death because the current in the iron post took the line of least resistance through his body and the engine room floor to the water pipes. For these reasons the first ruling was in our opinion rightly refused. [61] 3. The eleventh ruling * asked for was given in substance. The presiding judge told the jury that: “ The law does not say that because an accident happens therefore the employer was liable, that would be reasonable if he was an insurance company, but it is not so. But it assumes an employer to discharge his duty reasonably, with reasonable care, to see the machinery is in proper condition, as would be safe from injury or death; would discharge that duty just as you or I in his place would do.” The word “ assumes ” would seem to be a misprint. However that may be, in answer to a question from the defendant at the close of the charge as to whether he gave this ruling the presiding judge added: “ I have said to the jury, without your limitations, as I understand it, that the mere occurrence of an accident would not be evidence of negligence. That is more general than the request, and therefore carries it.” 4. The other contention made by the defendant is that the evidence did not warrant a finding that the father and mother of the deceased were dependent on him for support within R. L. c. 106, § 73. It is settled that partial dependence is enough. Mulhall v. Fallon, 176 Mass. 266. Welch v. New York, New Haven, & Hartford Railroad, 176 Mass. 393. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93. The case relied on by the defendant (Hodnett v. Boston & Albany Railroad, 156 Mass. 86) was a case where it did not appear that the plaintiff did not support herself by her own wages. See Mulhall v. Fallon, 176 Mass. 266, 267. The evidence warranted a finding that at the time of the son’s death the family consisted of father, mother, two daughters and one son in addition to the son whose death is the subject of this action. The son whose death is here in question was killed on December 11, 1903. The father and mother had no property and no money in bank. The father was seventy and the wife sixty years old. The father seems to have had no regular [62] work; he testified that he “worked for Mr. Rose from May until November and received fifteen cents an hour, averaged nine hours a day, averaged five days a week. In the winter I got ten dollars a month for Currier’s furnace and three dollars and a half a week for Rose’s furnace.” The father also testified that his “ wife is not an invalid; she is n’t very well now ”; and she testified that she “ had suffered for a long time from neuralgia; sometimes could not perform household duties.” Jennie, the younger daughter, had not worked for two years, but had stayed at home and helped her mother in conducting the household; she “ did the ordering.” Joseph had entered the Tufts Medical School in October, 1902, and since then had lived at home and had his breakfast and supper there while the school was in session, and apparently all his meals during vacation. He worked during the four months’ summer holiday. During this time he had received nothing from the family except his lodging and the meals mentioned above, and had contributed nothing to its support. The daughter Mary worked “ in the Hamilton,” and received from $7 to $8 a week. The son who was killed received $12 a week, which he handed to his mother. The mother testified that since the accident “ My family remains the same now with the absence of the one who is killed. We live in the same house, pay the same rent, live as comfortably as we can; we have plenty to eat and drink and wear, and a house to live in.” The surviving brother testified that “ Mary has had a slight increase in pay since my brother was killed.” The father “kept some pocket money, two dollars a week.” Subject to this the earnings of the three wage earners, aggregating about $24, were given to the mother for the support of the family of six and the personal expenses of the five, not including Joseph, who was in the medical school and supported himself. To find for the plaintiff the jury had to find that apart from the board and lodging of Joseph who was in the medical school, the parents were under all the circumstances dependent, in part at least, upon the son who was killed. There was no reason why the expense of Joseph’s board and lodging should be charged wholly against the son rather than against the daughter who worked. We do not think that his presence in the family was fatal. Neither do we think the fact fatal that the family [63] had since lived in the same house. It appeared that since then the daughter had. had a slight increase of pay. But apart from that, having in mind the age and the lack of permanent employment of the father and the facts that for the short time which had elapsed since, the death of the son the clothing probably had not had to be renewed but would have to be renewed in the future, and that for the remaining family (except Joseph) all that there was left were the earnings of the father and the one daughter, we are of opinion that the jury were warranted in finding that the parents were dependent, at least in part, on the son who was killed; and that for these reasons the first ruling asked for was rightly refused. We do not find in the bill of exceptions the seventeenth ruling referred to in the defendant’s brief. Uxeeptions overruled. Footnotes [*] The ruling requested was as follows : “ 11. In the present condition of the science of electricity as applied to electric lighting plants in the absence of other evidence of negligence on the part of the defendant the mere occurrence of the accident in this case is no evidence of actionable negligence on the part of the defendant corporation.”