CHARLES G. EDGARTON, administrator, vs. H. P. WELCH CO. (and a companion case [Note Page603-1]).

SPALDING, J. These are two actions of tort, brought by the administrator of the estate of Henry R. Edgarton, to recover for the death and conscious suffering of his intestate alleged to have been caused by the negligence of the defendants. [Note Page605-1] In each case the judge, subject to the plaintiff's exceptions, directed verdicts for the defendant. The questions for decision are whether the judge should have submitted the cases to the jury, and whether he erred in excluding certain evidence offered by the plaintiff.

Facts which could have been found are these: At about 5 A.M. on August 22, 1942, the plaintiff's intestate was riding in a truck owned by the defendant H. P. Welch Co. and operated by one of its employees, Pollard, on Ashburnham Street, Fitchburg. The intestate, a boy of eighteen years, had got on the truck in Vermont. (It is agreed that Pollard had no authority to invite the intestate to ride with him.) The truck (which was described as a tractor and trailer type) was being operated on a regular freight run between Burlington, Vermont, and Somerville and was carrying eight or ten tons of merchandise. While going around a curve on Ashburnham Street, the truck, instead of following the curve, went straight on over a curbing and across a lawn until it came to a wooded bank "where there was a steep drop." Continuing down the embankment, the truck sideswiped a tree, and its rear end hit and broke off a pole on which electric wires were strung.

When the truck came to rest it was in a precarious position at the top of another steep bank. Up to this time neither the intestate nor Pollard had been hurt. Although the emergency brake was then set and the truck was in gear, its position was such that Pollard was afraid to take

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his foot off the foot brake. Pollard told the intestate that he had better get out and take his luggage out as quickly as possible, as he was afraid that the truck might roll further. The luggage was stored in the rear of the trailer. Being unable to open the door next to him, the intestate crawled through a window, went around to the rear of the trailer and took out his luggage. To obtain his luggage it was necessary for him to open the rear doors of the trailer, which were latched. The intestate then came around to the side of the cab where Pollard was sitting and asked him if he could get out. Upon being told by Pollard that he was unable to open the doors, the intestate dropped his bags in order to assist him. He put his foot on the running board and as he did so he started to say "Oh" and then fell to the ground dead. [Note Page606-1] Pollard observed that as the intestate put his foot on the running board sparks appeared under his shoe. At about the same time sparks "started shooting off" all through the truck, and Pollard kicked the door open and jumped out. Sometime later the truck plunged down the second embankment to the street below and was wrecked.

The pole with which the truck collided was owned by the defendant New England Power Company (hereinafter called the power company) which operated a substation about a mile and a half away. At this station electricity was received at sixty-six thousand volts and was "stepped down" by transformers to thirteen thousand eight hundred volts. It was then transmitted to customers on "feeder" lines at the reduced voltage. "Feeder" No. 2 supplied nine mills of the Crocker Burbank Paper Company in Fitchburg. The pole with which the truck collided was carrying a "tap line" consisting of three wires from "feeder" No. 2 and supplied power to mill No. 5 of the Crocker Burbank company. These wires were not effectively insulated. When an overload on one of the lines occurred by reason of a short circuit it automatically opened a switch or circuit breaker at the substation which shut off the power. At 5:08 on the morning of the accident one of the switches opened and shut

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off the power on "feeder" No. 2. By means of signalling devices located in the substation this fact was immediately made known to the operator in charge. This indicated to him that there "was trouble on the line somewhere" which might be temporary or permanent. The indicator on the ammeter at the substation had "swung off scale" at three hundred, which was its "full rating," and had stuck there. The normal load on the line was around one hundred amperes. Pursuant to a company rule, the operator allowed the current to remain off for two minutes and then turned it on. When "feeder" No. 2 was reenergized the automatic switch did not reopen and the power remained on until it was shut off a half an hour later at the request of the police. [Note Page607-1]

There was expert evidence from which it could have been found that the electric shock which killed the intestate occurred in the following manner. One of the broken wires of the "3-phase" circuit came in contact with the ground and another broken wire came in contact with the metal body of the truck. [Note Page607-2] Since the truck was standing upright, its rubber tires were a sufficient insulation to prevent the circuit being closed. When the intestate, with one foot on the ground, put the other foot on the running board he completed "the circuit and received thirteen thousand eight hundred volts through his body, from one foot to the other." There was evidence tending to prove that the intestate was electrocuted after the current had been turned on at the substation following the two minute interruption [Note Page607-3] mentioned above.

The plaintiff offered to prove, in substance, the following

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through a witness who had qualified as an electrical expert: As soon as the current was automatically shut off at 5:08 A.M. due to the short circuit, tests could have been made at the substation which would have indicated to a competent operator familiar with testing apparatus that "wires were down on the circuit." They would also have shown that at the point of the break two of the wires (which normally would not be grounded) were in contact with the ground, and that one of those wires was in sufficiently good contact with the ground to pass a lethal current. Tests which would have recorded this situation could have been made during the two minute interval when the current was shut off "without introducing any lethal voltage into the circuit." Had these tests been made they would have indicated to the substation operator that conditions existed in which, if the full voltage were restored to the circuit, any person standing on the ground who came in contact with the wires or with any metal object touching an ungrounded wire would have received substantially the full voltage of the line through his body. Moreover these tests would have shown within a very few yards where the break was, and, by isolating the broken wires, power could have been restored to all the mills on the circuit except the one mill supplied by the broken tap line. Such tests could be made by instruments well known for many years to the electrical engineering world. These instruments are not unduly expensive and could be installed on the circuit and at the substation involved in this case at reasonable expense and with little difficulty. Tests of this sort have been used for such purposes for many years and they could be made without any danger to any person who might come in contact with a broken wire at the scene of an accident.

1. All of this offered testimony was excluded subject to the plaintiff's exception. [Note Page608-1] We are of opinion that it ought

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to have been admitted. In Dolan v. Boott Cotton Mills, 185 Mass. 576, it was said by Knowlton, C.J., at page 579, that "On the question whether the use of a particular machine or appliance by a defendant is negligent, a jury may properly consider all facts that throw light upon it. The possibility and the ease or difficulty of procuring something different which is safer and better are important facts bearing upon it. That something safer has been invented and is in common use is ordinarily a fact of considerable significance. Evidence of this kind is often received in such cases." To the same effect are McMahon v. McHale, 174 Mass. 320, 325, Draper v. Cotting, 231 Mass. 51, 59, Robitaille v. Netoco Community Theatre of North Attleboro, Inc. 305 Mass. 265, 268. Because of the danger of raising collateral issues much is properly left to the discretion of the trial judge in determining whether such evidence ought to be admitted. Veginan v. Morse, 160 Mass. 143, 148. McCarthy v. Boston Duck Co. 165 Mass. 165, 169. Reidy v. Crompton & Knowles Loom Works, 318 Mass. 135, 142. Here the excluded evidence bore directly on the principal issue in the case, namely, the negligence of the power company. Whether it was negligent in its operation of the substation at the time of the accident was a matter the jury could not be expected to decide on the basis of knowledge that they had. Whether better methods or devices than those employed by the power company should have been employed were matters which it was proper to submit to the consideration of the jury to enable them to pass on the question before them. Moreover, it appears that, before the evidence was offered, the power company had put in issue the matters to which it pertained through its examination of the operator of the substation. See Commonwealth v. Leach, 156 Mass. 99, 103-104. He had testified that he knew of no test that could be made that was feasible to determine what trouble existed along the line before reenergizing it; that in order to find the location of the trouble the line "would have to be left dead, disconnected from all possible sources of current and a gang of men sent out to walk every inch of the feeder to find out where the

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trouble was"; that this would probably involve a day and a half; and that he knew of no test to determine whether the wires were grounded without energizing them. In the circumstances here disclosed we are of opinion that the plaintiff was entitled, as of right, to introduce the excluded evidence. The "mere fact that a collateral issue may be raised is not of itself enough to justify the exclusion of evidence which bears upon the issue on trial." Bemis v. Temple, 162 Mass. 342, 344.

2. Considering the evidence which was introduced together with that which was erroneously excluded, we think that the plaintiff was entitled to go to the jury in the case against the power company. The power company, of course, was not an insurer. It was required to exercise care that was reasonable in the circumstances. But inasmuch as electricity is a highly dangerous force, those employing it are properly held to a correspondingly high degree of care in its use. O'Donnell v. Boston Elevated Railway, 205 Mass. 200, 202. Dierks Lumber & Coal Co. v. Brown, 19 Fed. (2d) 732, 735 (C. C. A. 8). McCormick v. Great Western Power Co. 214 Cal. 658. Knowlton v. Des Moines Edison Light Co. 117 Iowa, 451, 455. Hagerstown & Frederick Railway v. State, 139 Md. 507. Bunten v. Eastern Minnesota Power Co. 178 Minn. 604, 607. Small v. Southern Public Utilities Co. 200 N. C. 719. Burdick v. South County Public Service Co. 54 R. I. 310, 314. The evidence warranted a finding that the intestate was electrocuted after the lines had been reenergized by the operator at the substation following the two minute interval when the current was off. It is not disputed that the operator knew that the circuit breaker had opened and that trouble existed somewhere on "feeder" No. 2. He knew that this particular line ran for almost its entire distance along or near the public streets of Fitchburg. He also knew that there would be no serious interruption of service by failing to reenergize the line, since only one mill (not then in operation) was being supplied by this line. There was no evidence of any electrical storm in the vicinity which, according to the evidence, sometimes caused an overload on the lines. The

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operator testified that the most likely cause of the trouble was some failure of equipment on the premises of a customer, but he made no attempt to eliminate that possibility. That could have been accomplished by a telephone call to the Crocker Burbank company. In view of the danger attending the transmission of electricity, these facts taken in conjunction with the excluded testimony would have warranted the jury in concluding that the power company was negligent either in reintroducing the current into "feeder" No. 2 after it knew or ought to have known that trouble existed on the line which might endanger persons who might be in the vicinity, or in not equipping its station with the necessary equipment to enable it to discover the cause and place of the trouble with greater accuracy. Support for this conclusion may be found in three comparatively recent cases decided by the Court of Errors and Appeals of New Jersey, Gereghty v. Wagner, 117 N. J. L. 174, Robbins v. Thies, 117 N. J. L. 389, Adams v. Atlantic City Electric Co. 120 N. J. L. 357. The facts in the case last cited bear a striking resemblance to those in the case at bar. That the intestate's death might also have been attributable in part to the negligence of Pollard in going off the road and knocking down the pole would not relieve the power company of liability if its negligence was a concurrent cause of death. Brown v. Thayer, 212 Mass. 392, 397. Meech v. Sewall, 232 Mass. 460, 461. Luff v. Mahlowitz, 296 Mass. 206, 207.

3. The power company argues that even if there was evidence which would warrant a finding that it was negligent, yet the plaintiff is barred from recovery because the intestate's status on the land where the accident happened was that of a trespasser or licensee. If the intestate was merely a trespasser or licensee with respect to the power company the plaintiff could not recover, for there is no evidence of wanton or reckless conduct on its part. It appears that the land on which the accident occurred was owned by O. S. Cook & Sons Company, and that the power company had acquired, for a term of fifteen years, "The right and easement to construct, reconstruct, repair, maintain, operate and patrol,

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for the transmission of high and low voltage electric current and for telephone use, a line of poles consisting of not over two poles." It also had the "right and easement . . . to cut, trim and remove such trees and underbrush as may in the opinion of the said lessee interfere with or endanger said line."

But this contention cannot prevail. Considering the manner in which the truck came in contact with the property of the power company, the intestate was not a trespasser. The trend of modern authority is than an unintended intrusion upon the land in possession of another does not constitute a trespass. Feiges v. Racine Dry Goods Co. 231 Wis. 270. Puchlopek v. Portsmouth Power Co. 82 N. H. 440, 442. White v. Suncook Mills, 91 N. H. 92, 97-98. Durst v. Wareham, 132 Kans. 785, 789. Peacock v. Nicholson, 11 T. L. R. 225. Gayler & Pope, Ltd. v. B. Davies & Son, Ltd. [1924] 2 K. B. 75. Prosser on Torts, pages 77-78. This view has been adopted by the American Law Institute. The rule formulated by the Institute is that "Except where the actor is engaged in an extra-hazardous activity, an unintentional and non-negligent entry on land in the possession of another or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest." Restatement: Torts, Section 166. As pointed out in comment c, this rule not only deals with nonliability for trespass of an accidental intrusion on land in the possession of another but it has a further importance in that it removes the actor from the class of trespassers and relieves him from the burdens incident thereto in an action against the possessor. See also Restatement: Torts, Section 158, comment e. Recent decisions of this court tend to support this rule. See United Electric Light Co. v. Deliso Construction Co. Inc. 315 Mass. 313, 318; Marengo v. Roy, 318 Mass. 719, 721. In the United Electric Light Co. case it was said at page 318, "A trespass requires an affirmative voluntary act upon the part of a wrongdoer and in that respect differs from negligence."

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In the case at bar there was no voluntary act on the part of the intestate which brought either him or the truck in which he was riding in contact with any property of the power company. The plaintiff was therefore entitled to go to the jury on the count for death.

4. But the verdict was properly directed for the defendant power company on the count for conscious suffering. The only evidence of conscious suffering was that as the intestate put his foot on the running board of the truck he "started to say `Oh.'" Whether, in view of the fact that his death occurred immediately thereafter, this attempted utterance by the intestate was a result of a conscious effort or was purely a reflex action, is purely speculative. We think that this aspect of the case is governed by Royal Indemnity Co. v. Pittsfield Electric Co. 293 Mass. 4, 8-9, Allicia v. Boston, Revere Beach & Lynn Railroad, 294 Mass. 488, 490, and Melnik v. Perwak, 295 Mass. 512, rather than by Boutlier v. Malden, 226 Mass. 479, 488, on which the plaintiff relies.

5. It remains to consider whether the case against the H. P. Welch Co., the owner of the truck, ought to have been submitted to the jury. It is conceded that its employee Pollard was without authority, express or implied, to invite the intestate to ride on the truck on the day of the accident. In these circumstances there would be no liability to the plaintiff on the part of the H. P. Welch Co. arising out of Pollard's conduct up to the time the truck came to a stop. This aspect of the case is governed by O'Leary v. Fash, 245 Mass. 123, and Little v. Levison, 316 Mass. 159. Those cases hold that where the plaintiff was invited to ride in the defendant's automobile by an employee who lacked the authority to extend the invitation, the defendant would not be liable to the plaintiff for the conduct of his employee in driving the automobile, including conduct which was reckless and wanton, since the employee was not acting within the scope of his employment when the plaintiff was injured and the defendant owed no duty to the plaintiff. That principle is controlling here.

It is not necessary to determine whether, after the truck

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came to a stop, there was a change in the status of the intestate with respect to the truck. (See Conley v. Rosenfield, 271 Mass. 433; Ruel v. Langelier, 299 Mass. 240; Head v. Morton, 302 Mass. 273; Bragdon v. Dinsmore, 312 Mass. 628. Compare Fone v. Elloian, 297 Mass. 139.) Even if the unauthorized ride of the intestate was at an end, there would be no basis for recovery against the H. P. Welch Co. Nothing that Pollard did or failed to do after the truck came to a stop would warrant a finding that he was negligent. Nor is it necessary to discuss the imminent peril doctrine invoked by the plaintiff. (See Linnehan v. Sampson, 126 Mass. 506; Dixon v. New York, New Haven & Hartford Railroad, 207 Mass. 126, 130.) As the case last cited points out, that doctrine is applied only where the situation which invites rescue is created by a tortious act of the defendant or of one for whom he is responsible. See Restatement: Torts, Sections 443, 445 and comments. Even if Pollard got into his predicament through his own negligence, such negligence occurred, as pointed out above, in circumstances which would furnish no basis for rendering his employer liable to the plaintiff.

It follows that in the case against the power company the plaintiff's exceptions must be sustained and in the case against the H. P. Welch Co. the plaintiff's exceptions must be overruled.

So ordered.