Negligence. In an action by the administratrix of the estate of one who had been employed as a general repair man in a factory building, against an electric light company, whose wires, carrying a current of electricity more than sufficient to destroy human life, were attached to an upright pole with a cross arm upon the roof of the factory by permission of its proprietor, for causing the death and conscious suffering of the plaintiff's intestate by means of an electric shock received by him when in the course of his duty he had gone to the roof to repair a leak, it appeared that the plaintiff's intestate in some way received an electric shock and at some time after receiving it fell from the roof of the factory to the roof of a shed below, that he was conscious when assistance reached him and remained so for three quarters of an hour, when he died, that both of his hands were burned badly, the right one through to the bone, and that the back of his neck also was burned badly. A witness testified that, his attention being attracted by the groans of the intestate, he looked up and saw him on the roof of the factory, that he was on his back and was squirming around with his hands over the wire or two wires. No one saw the accident or testified to the manner in which it occurred. Held, that there was nothing to show that the plaintiff's intestate was in the exercise of due care, and that, as the manner of the accident was purely a matter of conjecture, a verdict properly was ordered for the defendant.
HAMMOND, J.
Even if it be assumed in behalf of the plaintiff that there was negligence of the defendant, still there is one fatal defect in each case. She has failed to show that the deceased was in the exercise of due care. From the time he began to ascend the ladder which led to the skylight in the roof until, about ten minutes later, he was seen by the witness Long "squirming" around upon the roof with his hands over the defendant's wires, nothing is known of the care he exercised in his movements. No one saw him or heard him, nor is there any circumstance shown which throws the slightest light as to his care for himself during that interval. The manner in which the accident occurred is purely a matter of conjecture. The case is clearly distinguishable in this respect from Saures v. Stevens Manuf. Co. 196 Mass. 543, and other similar cases cited by the plaintiff, and must stand in the class of which Brodie v. Rockport Granite Co. 197 Mass. 147, is a type.
In each case the entry must be
Judgment for the defendant.