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(148 N.E.) for him by competent electricians, author- s practice for many years had been to equip ized and directed to install them in a proper stationary motors with wires of this kind; and safe manner. The conveyor was mod- but there was testimony tending to prove i ern, having been put into commission in that at the time of the accident no good way November, 1918; the motor was of high of attaching them to portable motors was grade, standard make, and was controlled by known, that they were not in general use, an iron switch metallically connected with and that it was common practice to use a the framework of the conveyor, so that if 550-volt motor, for coal conveyors. Upon the framework was charged with electricity conflicting evidence it could have been found a person putting his hand upon the switch that such wires could and should have been would receive a shock. The jury could have attached to the defendant's motor, and that found that there was moisture in the coal in no other way could a portable 550-volt where Lamberti stood, that "a moisture machine be made safe. Testimony also was ground" could pass a fatal current, and that introduced from which the jury might have a current with a voltage of 550 is dangerous found that a 550-volt motor could not be to human life.

safely installed on a portable machine; that The defendant was absent from the com a current of 110 or 220 volts would do the monwealth at the time of the accident. Tes- defendant's work as effectively as one of timony was introduced tending to prove that higher voltage; that this lower voltage could before that time complaints of slight shocks be obtained by the installation of a transfrom the machine had been made to the de- | former in the defendant's plant to reduce fendant's foreman; that just before Lam- the current; and that if such lower voltage berti died a fellow workman was standing had been used the machine would have been at the discharging end of the coal chute safe. shoveling coal, with one hand on the iron [1-4] As was said in O'Donnell v. Boston part of the shovel, and received a shock of Elevated Railway, 205 Mass. 200, 202, 90 N. electricity through the chute when the cur- E. 977: rent was turned on by the foreman, who

Electricity is a highly dangerous was at the switch using a stick for the pur- servant, and the defendant employing [it] for its pose; that at the same time Lamberti cried own purposes is properly held to a correspondout, falling forward across the chute; that | ingly high degree of care in its use." the current was then shut off, and Lamberti

The evidence tending to prove that the derolled off the chute unconscious and did not

fendant's foreman knew before the accident thereafter shows signs of consciousness. Tests made soon after the accident disclos- electric shocks from the coal conveyor would

of complaints that employees were getting ed a leakage of electricity to the frame of justify the jury in finding that the defendant the conveyor which should not have existed,

was negligent in not discovering the dangerand the same condition was found the day ous condition and making it safe. Mooney after the accident. The discovery was also v. Connecticut River Lumber Co., 154 Mass. made that one wire of the secondary circuit 407, 28 N. E. 352. The words “defect in the was gounded by contact with a metallic pipe condition of the

machinery” in at the Malden Knitting Mills. This was a

the Employers' Liability Act, St. 1887, c. 270, serious matter, demanding immediate at- l$ 1, cl. (1), do not refer to the working capactention, and was repaired the afternoon of ity of the machinery but to its condition with July 28, or the next morning.

regard to the safety of the employees. When The plaintiff contended that the defendant the statute speaks of a defect not having was negligent in setting her intestate to been remedied, it does not mean that the work at or near a coal conveyor which had machine must have been made perfect for concealed defects dangerous to human life; working purposes, but that its dangerous and she introduced evidence tending to prove condition must have been ended. Willey. v. that in either one of two ways this condition Boston Electric Light Co., 168 Mass. 40, 46 might have been remedied and the accident N. E. 395, 37 L. R. A. 723. The defect may avoided, namely: (1) By the installation of be the want of a safety device or appliance. & safety ground wire; or (2) by the reduc- Myers v. Hudson Iron Co., 150 Mass. 125, tion of the voltage of the electric current. 22 N. E. 631, 15 Am. St. Rep. 176. Many of the defendant's exceptions relate to [5-9] The plaintiff was not bound to prove these two matters.

a specific defect or a specific act of negliA safety ground wire is one making a di- gence to entitle her to recover.

It is enough rect connection between the framework on if she shows facts from which negligence may which the motor sets and the ground, where be inferred. Erickson v. American Steel & by any leakage of electricity from the mo Wire Co., 193 Mass. 119, 123, 78 N. E. 761; tor or wires to the framework is carried Melvin v. Pennsylvania Steel Co., 180 Mass. into the ground, thus preventing shock to a 196, 202, 62 N. E. 379. The rule that an person coming in contact with the machine. employee assumes the risks of the business, There was no such wire attached to this and the employer is not bound to change his machine. It appeared in evidence that the structure to make it safer for the employee

148 N.E.-30



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or to use the most improved machinery, ap- in the ordinary and expected way,' was one plies to all obvious conditions and dangers which rested on the employer himself; and which should be observed and appreciated. he cannot free himself from responsibility Mutter v. Lawrence Manuf. Co., 195 Mass. for the discharge of his personal duty, by 517, 81 N. E. 263; McKenna v. Gould Wire showing that he complied with the requireCord Co., 197 Mass. 406, 83 N. E. 1113; Riv- ments of the Malden inspector of wires or ers v. Richards, 213 Mass. 515, 100 N. E. engaged competent engineers to design and 745. But this rule does not protect the em competent electricians to install the wires ployer if he has failed to exercise reasonable and apparatus properly; nor by proving that care to discover and remedy defects that are he followed their advice and adopted their not obvious in the condition of the ways, methods and did the work as recommended works and machinery. The facts that the by them with the approval of the inspector of motor was plainly marked 550 volts and that wires; nor by proving that he had no knowla person could see that no wire connected edge that a safety ground wire would be its frame with the ground did not make the an additional protection; nor by delegating risk of receiving a fatal electric current the performance of this duty to another, through the coal chute an obvious one. The whether in his service or not. Erickson v. defense that the machine was purchased American Steel & Wire Co., supra; Chisholm from a · reputable manufacturer does not v. New England Telephone & Telegraph Co., show that the defendant has done his whole 185 Mass. 82, 69 N. E. 1012; McMahon v. duty, when it appears that he has incorpo- McHale, 174 Mass. 320, 54 N. E. 834; Myers rated it into his structure in accordance v. Hudson Iron Co., supra; Kirk v. Sturdy, with the plan of his engineer and the dan- 187 Mass. 87, 72 N. E. 349. gerous condition complained of is in not at

(14, 15] On the issue whether the defendtaching' adequate safety devices or installing ant has used reasonable care to furnish safe a transformer to reduce the current to a low- machinery, the plaintiff within her er voltage, or in other ways making it reason rights in introducing the evidence relating ably safe. Erickson V. American Steel & tó a safety ground wire and a transformer Wire Co., supra.

It is not contended that to reduce the voltage of the motor. Mcthere was any defect in the conveyor as pur- Mahon v. McHale, supra. The jury were chased from the manufacturers, and cases instructed in substance that the plaintiff like Roughan v. Boston & Lockport Block could not recover unless she proved that her Co., 161 Mass. 24, 36 N. E. 461, Reynolds husband died from an electric shock resultv. Merchants' Woolen Co., 168 Mass. 501, 47 ing from negligence for which the defend. N. E. 406, and Fuller v. New York, New Hav- ant was responsible; and they must have en & Hartford Railroad, 175 Mass. 424, 56 understood that if the current were not N. E. 574, do not apply.

turned on the verdict would be for the [10] The jury were instructed, in substance, defendant. For the reasons stated, the rethat a defendant is not bound to provide for quests numbered 11, 18, 19, 20, 22, 24, 25, 28, his employees the latest and safest appli- 34, and 38 were properly refused; and for ances or any particular machine, even if it the same reasons the exceptions saved to the would be more suitable and less dangerous, testimony of the plaintiff's electrical expert, in case the one provided is fit and prop Puffer, and to the testimony of another wit

Wolfe v. New Bedford Cordage Co., 199 ness called by the plaintiff, relating to the inMass. 591, 592, 76 N. E. 222. If, however, stallation and function of a safety ground he sets his employees to work on or near a wire and of a stepdown transformer to remachine with the concealed danger of its duce the voltage of the current, must be becoming charged with a current of electric overruled. A witness called by the defendity which, in the exercise of reasonable care, ant testified in cross-examination, without he ought to have made safe, it is not a de- objection, that in his opinion there should fense for him to show that the same kind have been a safety ground wire on the deof machines are commonly used in work fendant's coal conveyor at the time of the similar to his. Hill v. Winsor, 118 Mass. accident and that a 110-volt motor could 251; Wilson v. Alexander, 230 Mass. 242, 119 be used on that conveyor to do the defendN. E. 751. This is true, even though the ant's work. machine itself be perfect in mechanism, if it [16] The defendant asked the trial judge is found to be unsuitable and unsafe and if to rule that the doctrine of res ipsa loquitur the defendant knew this or in the exercise of does not apply to the case at bar, and that reasonable care should have known it. Wil the plaintiff cannot recover by virtue thereson v. Alexander, supra.

of unless competent affirmative evidence is (11-13] In the case at bar it might be found submitted to warrant a legitimate inference that the duty of using reasonable care to of negligence on the part of the defendant see that the coal conveyor and motor were or of some person in his employ. The de so erected, protected, and maintained that fendant contended that the mere fact that they would not carry a fatal electric cur- Lamberti fell over the coal chute and died rent to an employee working near them is not evidence of death from an electric


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exclusion, to the effect that it was without the Sherman Anti-Trust Act (U. S. Comp. St.

(148 N.E.) shock. The judge clearly left the issue of Works Co., 159 Mass. 311, 34 N. E. 523. It the cause of death to the jury to decide up- did not appear, however, that it was on the whole evidence, a part of which was used. One witness referred to it, but testhe testimony as to the previous sound phys- tified to his own opinion, and it was not in ical condition of the deceased, the opinion evidence that he based that opinion on the of a physican that death was caused by an information contained in the code. electric shock, and the evidence that a fellow All exceptions argued have been considered employee got a shock through the coal chute and no reversible error is discovered. at the time Lamberti met his death. The Exceptions overruled. judge also submitted to the jury the question whether the defendant was negligent in not equipping the frame of the motor with a safety ground wire or in not installing a transformer to reduce the current to CODMAN v. NEW YORK, N. H. & H. R. CO. a lower voltage or in not discovering and remedying the cause of electric shocks pre

(Supreme Judicial Court of Massachusetts.

Suffolk. June 29, 1925.) viously received by employees; and instruct. ed them in substance that if Lamberti diedi. Railroads 6-Statute held prospective

of an electric shock this did not in and of only. Voir itself independently of any other fact prove G. L. c. 160, § 71, being substantial re-en

negligence, but that the fact of his death by actment of St. 1907, c. 585, forbidding railroads electricity, if that were a fact, might be con

to acquire stock in other railroads operated sidered with the other evidence on the ques within commonwealth, was by express terms tion of the defendant's negligence.

The prospective only in operation, and did not applaintiff placed the ground of her recovery

ply to purchases of stock made prior to en

actment. on special causes and did not rely on the mere happening of the accident to prove 2. Railroads Om 18Railroad held not prohibit. negligence and the case was so submitted

ed from exercising ownership of stock in

other railroad.
to the jury. Cook v. Newhall, 213 Mass.
392, 101 N. E. 72. This request was given

Under St. 1909, c. 519, creating Boston in substance and the charge concerning it Railroad Holding Company, the New York, was sufficiently favorable to the defendant. New Haven & Hartford Railroad Company is

not prohibited from owning stock of the Boston [17] The request to the effect that there & Maine Railroad, through its ownership of could be no recovery if the only specific de- stock in the Holding Company, or from exercisfect was in the circuit of the Malden Elec-ing ownership of such stock in accordance with tric Company or in the premises of its cus- chapter 519, despite G. L. c. 160, $ 71, and the tomers other than the defendant, and that Act of 1909 is not superseded by St. 1914, c.

766. there can be no recovery for any defect beyond the wires, machinery, ways, and works 3. Railroads Omw 18—Statute held not contract of the defendant, could not have been given. between commonwealth and railroad waiving Upon the testimony the jury could have latter's rights under former act. found that the employer had the duty of in St. 1914, c. 766, held not to constitute constalling a safety ground wire to guard em

tract between commonwealth and the New ployees against the danger of receiving an York, New Haven & Hartford Railroad Comelectric shock from the accidental escape of pany, whereby terms of St. 1909, c. 519, au

thorizing railroad to own stock of another electricity, whether due to a defect in the railroad through medium of a holding company defendant's premises or outside. The charge were waived or abrogated. made it clear that there could be no recovery unless there was a defect in the condition 4. Constitutional law Om 48—Every presumption

favors validity of statute enacted by general of the ways, works and machinery of the

court. defendant in his plant for which he was re

Every rational presumption is made in favor sponsible.

of validity of statute enacted by the general [18, 19) The exceptions to the admission of court, as against claim of conflict with federal the electric code must be overruled; the statutes relating to interstate commerce. evidence was afterwards stricken out and it is to be presumed that the jury disregarded 5. Courts m489(8)-Relief for violation of it. Todd v. Boston Elevated Railway, 208

Sherman Anti-Trust or Clayton Acts only in

United States court.
Mass. 505, 94 N. E. 683, Ann. Cas. 1912A,

When a party seeks relief for violation of 1005. The qualifying words in the order of

88 8820-8823, 8827–8830) or the Clayton Act, prejudice to the right of experts to refer to he must address a court of United States and the code as the basis for an opinion, gave not of a state. the defendant no good exception. The code properly might be used for the limited pur Case reserved from Supreme Judicial pose stated. Finnegan v. Fall River Gas / Court, Suffolk County,

For other cases see game topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Suit in equity by Edmund D. Codmans without the express authority of the Legisagainst the New York, New Haven & Hart- lature." A suit then pending by the United ford Railroad Company to restrain alleged States against the defendant in a federal violations of law. Case reserved on plead- court, designed to terminate its relations ings and master's report. Decree to be en- with the Boston & Maine Railroad, was theretered dismissing bill.

upon dismissed by the Attorney General of C. W. Crooker, of Boston, for E. D. Cod- the United States, and thereafter pursuant

to said chapter 519 the defendant transfer. H. S. Davis, of Boston, for Railroad Co.

red its two hundred twenty-five thousand seven hundred and thirty-two shares of the

capital stock in the Boston & Maine Railroad RUGG, C. J. This suit in equity is brought to the Boston Railroad Holding Company by a stockholder in the defendant corpora- (hereinafter called the Holding Company) tion to restrain alleged violations of law pro- which are the same shares ever since held by posed by it. It is assumed in favor of the it although now, due to reorganization and plaintiff, but without so deciding, that he is consolidation, they constitute twenty-eight authorized to institute such suit by G. L. c. and three-tenths per cent. instead of a ma160, $ 252.

jority of such capital stock. The defendant The case was referred to a master, The

owns all the common stock and two hundred pertinent facts as alleged and found, succinct. forty-four thousand nine hundred and thirty. ly stated, are these: The defendant is in- nine out of a total of two hundred seventy. corporated under the laws of the state of two thousand nine hundred and thirty-nine Connecticut and of this commonwealth, and shares of the preferred stock of the Holding at the time of the institution of this suit and Company. Through ownership of stock in the for a long time hitherto has owned and op- latter corporation its shares of stock in the erated a railroad within this commonwealth. Boston & Maine Railroad were voted by the In 1906 the defendant acquired a majority of defendant in the years 1910 to 1913 incluthe stock of the Boston & Maine Railroad, a sive. Thereafter the United States brought corporation also owning and operating a rail- suit against the defendant in a federal court road in this commonwealth at all times mate- to determine its relation with other corporarial to this suit. When this fact was called tions including the Boston & Maine Railroad, to the attention of the general court, it en- wherein decree was entered in October, 1914, acted St. 1907, c. 585 (see now G. L. c. 160, 8 directing the defendant to assign its shares in 71) which in sweeping terms forbade such the Holding Company to certain named trusan acquisition of stock after the passage of tees, and such assignment was made accord. the act, and further forbade any such corpo- ingly. The trustees were required, pending ration holding such stock from voting on the the final consummation of the purposes to same until July 1, 1908. After full consid- be accomplished by the decree, to hold the eration by the general court of the question shares of stock and act with respect to them whether such acquisition of the stock in the with a view to securing to the Boston & Boston & Maine Railroad by the defendant Maine Railroad a management solely in its was in the public interest, St. 1909, c. 519, own interest, as distinguished from that of was enacted. Thereby the Boston Railroad the New York, New Haven & Hartford RailIlolding Company was incorporated for the road Company, with due regard for the pubdeclared "sole purpose of acquiring and hold- lic interest and with substantial representaing the whole or any part of the capital stock tion to minority stockholders of the Boston &

of the Boston & Maine Railroad, Maine Railroad. Without reciting in detail and of voting upon all certificates of stock | the decrees and modifications thereof enterso acquired and held.” It further was pro- ed in that suit, it is enough to say that the vided by that act that “the stock of the Bos- trustees were originally directed to sell the ton & Maine Railroad which may be acquired stock in the Boston & Maine Railroad owned by said Boston Railroad Holding Company | by the Holding Company upon stipulated conshall not be sold by it without express au- ditions but that no such sale was made, apthority from the Legislature"; and that "any parently because it was not reasonably pracrailroad corporation incorporated at the date ticable, and that in June, 1923, decree was en• of the passage of this act under the laws of tered dissolving the trusteeship in so far as this commonwealth may guarantee the prin- stock in the Holding Company was concerned, cipal of and the dividends and interest upon and directing the trustees to assign and de the capital stock

of said Boston liver all stock of the Holding Company held Railroad Holding Company, and may acquire by them to or upon the order of the defendand hold said stock

provided, how- ant, subject to the provisions of St. 1909, c. ever, that the shares of stock of said Boston 519, and the statutes of this commonwealth. Railroad Holding Company shall not be sold Up to 1922 there had been no contest by the or transferable until said stock has been defendant touching any of the affairs of the guaranteed as hereinbefore provided. Any Boston & Maine Railroad. Since then it has railroad corporation acquiring said stock endeavored to secure a representation on its

shall not thereafter sell the same board of directors and at the annual meet

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(148 N.E.) ing of 1924 two persons proposed by the Hold- | the corporate acts of the Boston & Maine ing Company were elected to the board com- Railroad "in violation of the general laws of posed of seventeen members. With respect to this commonwealth, as the same is now conits policies officers of the defendant have tak-templated and intended” by the defendant; en a position not altogether in harmony with and (2) that the defendant be required to asthat of a majority of the stockholders of the sign all its stock in the Holding Company to Boston & Maine Railroad. There are diverg- trustees to be appointed by the court to be by ent opinions among its stockholders as to them held and administered with due regard the general policies which ought to be pur- to the interests of the defendant but in strict sued by the Boston & Maine Railroad, wheth- accordance with the laws of the commoner by consolidation with any other company wealth. or companies and in other respects. It is not [1] The acquisition of the stock of the Bosnecessary to state these views.

ton & Maine Railroad by the defendant in With respect to the attitude of the defend- 1906 was ultra vires the defendant. Attorant and its officers concerning representation ney General v. New York, New Haven & on the board of directors of the Boston & Hartford Railroad, 198 Mass. 413, 84 N. E. Maine Railroad the master finds:

737. The allegations of the present bill are

not founded on that acquisition. The plain"The New Haven Railroad desired proportiff both by his bill and by express statetional representation on the board of directors of the Boston & Maine in order that it might ment in his brief relies wholly upon G. L. C. be helpful to the Boston & Maine in promoting 160, § 71, being in substance a re-enactment the interests of both companies so that they of St. 1907, c. 585. The latter statute was by might be of mutual advantage, but not of dis- express terms prospective only in its operaadvantage to either, and that it might law- tion. It did not purport to apply to purfully participate in the considerations in re chases of stock made prior to its enactment. gard to consolidation, and that as a minority [2] The Legislature by St. 1909, c. 519, holder of the stock of the Boston & Maine it dealt comprehensively with the whole subdid not expect to secure control of the Boston ject of the relation of the defendant to its & Maine Road. The officers of the respondent

stock in the Boston & Maine Railroad. The Railroad believed that as they were the indirect owners of 28.3 per cent. of the stock of the purpose of that act was to divest the defendBoston & Maine, and as they had an investment ant of direct ownership of that stock and to indirectly in the Boston & Maine Railroad of cause it all to be owned by the Holding Comabout $27,000,000.00, that they had the right pany. The powers of that company are speto have proportionate representation upon the cific. They include all the ordinary powers board so that they might follow the activities of owners of capital stock in a corporation of the Boston & Maine Railroad and to see except so far as therein limited. One of the to it that the investment was not depleted, and definite powers conferred is that of voting that by that means they could watch the financial situation of the Boston & Maine and give upon the stock of the Boston & Maine Railattention to the situation, and if possible aid in road owned by it. That imports, in view of devising means practicable for the assistance all the provisions of act, power to exerand corporation both in increasing Boston & cise the judgment commonly exercised by a Maine revenues and otherwise financing its re- stockholder as to the election of officers, the quirements. I find that the respondent did formulation of policies and the other corpobave this large financial interest in the Boston rate management. The findings of the mas& Maine, and that it was the duty of the di

ter are explicit to the effect that both St. rectors of the New Haven to see to it that its in; 1907, c. 585, now G. L. C. 160, $ 71, and St. vestment was protected, and that they would not have been faithful to their trust had they 1909, c. 519, were enacted with special refnot attempted to do everything possible to see

erence to the ownership of stock in the Bosto it that the Boston & Maine was a paying ton & Maine Railroad by the defendant. Toproposition, provided what they did could be gether they constitute the legislative plan on lawfully done."

that subject. It is impossible in view of these

findings and of the terms of the statute to The Boston & Maine Railroad was not law- hold that the Legislature intended to prohibit fully leased, owned or operated by the defend the defendant from owning indirectly the ant prior to May 1, 1907, and the two have stock of the Boston & Maine Railroad never been consolidated. There has been no through its ownership of the stock of the specific authority by law relieving the Boston Holding Company or to prohibit the defend& Maine Railroad or the defendant from the ant from exercising its ownership of the operation of the restrictive and limiting pro- stock in the Boston & Maine Railroad in acvisions of G. L. C. 160, § 71, unless as matter cordance with St. 1909, c. 519. The enactof law such authority is contained in St. ment of St. 1909, c. 519, constituted in sub1909, c. 519.

stance and effect specific authority to the deThe prayers of the bill are (1) that the de- fendant to deal with its stock in the Boston fendant and its officers be permanently re- & Maine Railroad as therein set forth: strained from voting or utilizing the stock of The plaintiff has not argued and could not the Holding Company in such manner as to well argue that that statute violated any of have any tendency to effect a control over his constitutional rights.

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