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*Note: The following opinion was edited by AudioCaseFiles' staff.
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Cooley v. Public Service Co.
10 A.2d 673
Supreme Court of New Hampshire, 1940

Cooley v. Public Service Co.
Supreme Court of New Hampshire, 1940
10 A.2d 673

PAGE, J. On November 29, 1935, the telephone company maintained a cable on Taylor Street, Manchester, running north and south. This cable consisted of a lead sheath, inside which were carried a large number of wires connected with the service stations of its subscribers. The cable was supported by rings from a messenger wire strung on the telephone company poles. The construction conformed to standard practices, and the messenger wire was grounded every thousand feet. The sheath of the cable also was grounded. The telephone company further maintained at the station which the plaintiff was using when she received her injuries, two protective devices for grounding foreign currents in order to prevent their entrance to the house and to the subscriber's instrument. There is no evidence that these devices did not operate perfectly.

At a point about a mile distant from the plaintiff's house, the Public Service Company's lines, east and west along Valley Street, crossed the telephone cable at right angles and some eight or ten feet above it. These lines were not insulated.

Shortly after midnight, during a heavy storm, several of the Public Service wires over the intersection of Valley and Taylor Streets broke and fell to the ground. One of them came into contact with the telephone messenger. This particular wire of the defendant carried a voltage of about 2300. Consequently an are was created, which burned through the messenger and nearly half through the cable before the current was shut off. This was effected automatically when the grounding of the high-tension current operated the defendant's circuit breaker. The time for this operation was brief. A witness who saw the wires fall testified that the fall was accompanied by a flashing and flickering that lasted two or three seconds. All house and street lights were extinguished. The plaintiff's brother was in the house with her at the time. Right after the crashing noise, soon to be mentioned, the lights flickered a few times and went out "around fifteen seconds after" the sound.

When the contact of the wires occurred, the plaintiff was standing at the telephone, engaged in a long-distance conversation. The contact created a violent agitation in the diaphragm of the receiver and a loud explosive noise. The plaintiff fell to the floor. She has since suffered from what her physicians describe as traumatic neurosis, accompanied by loss of sensation on the left side.

From the plaintiff's expert medical testimony it could be found that the neurosis was the result of fright or nervous shock induced by the noise. Though the plaintiff claimed during the trial that she suffered an electrical shock, there was not the least evidence that this was so, and the claim was specifically abandoned in the course of argument before us. . . .

Apparently there is no claim that the negligence of the defendant caused the wires to fall. The plaintiff's sole claim is that the defendant could have anticipated (1) that its wire might fall for a variety of reasons, which is true; (2) that a telephone subscriber in such case might hear a great noise, which also is true; (3) that as a result of fright thereby induced the user of the telephone would suffer physical injuries, which, as we have seen, is a rare contingency, though it may be anticipated. It is urged that the defendant's consequent duty was to maintain such devices at cross-overs as would prevent one of its falling wires from coming into contact with a telephone wire.

The devices suggested are two. The first is a wire-mesh basket suspended from the poles of the defendant at the point of cross-over, above the cable and below the defendant's wires. Two forms were suggested. One would be about six by eight feet. The other would be of an unassigned width and would stretch the full distance between defendant's poles. In either case the basket would be insulated. The theory is that falling wires, though alive, would remain harmless in the basket. . . .

In the case before us, there was danger of electrocution in the street. As long as the telephone company's safety devices are properly installed and maintained, there is no danger of electrocution in the house. The only foreseeable danger to the telephone subscriber is from noise--fright and neurosis. Balancing the two, the danger to those such as the plaintiff is remote, that to those on the ground near the broken wires, is obvious and immediate. The balance would not be improved by taking a chance to avoid traumatic neurosis of the plaintiff at the expense of greater risk to the lives of others. To the extent that the duty to use care depends upon relationship (Garland v. Railroad), the defendant's duty of care towards the plaintiff is obviously weaker than that towards the man in the street.

The defendant's duty cannot, in the circumstances, be to both. If that were so, performance of one duty would mean non-performance of the other. If it be negligent to save the life of the highway traveler at the expense of bodily injury resulting from the fright and neurosis of a telephone subscriber, it must be equally negligent to avoid the fright at the risk of another's life. The law could tolerate no such theory of "be liable if you do and liable if you don't." The law does not contemplate a shifting duty that requires care towards A and then discovers a duty to avoid injury incidentally suffered by B because there was due care with respect to A. Such a shifting is entirely inconsistent with the fundamental conception that the duty of due care requires precisely the measure of care that is reasonable under all the circumstances. 2 Restatement, Torts.

The duty to take precautions rests upon the rule of reasonable anticipation, even though that rule does not prevail as to damages once the duty appears. If the duty to the man in the street be forgotten for the moment, the duty to the plaintiff would depend upon anticipation of bodily injuries because of fright at a noise. Of a defendant in such case it is to be remarked that "the likelihood that his conduct will cause bodily harm involves two uncertain factors, the chance that his act will cause the [emotional] disturbance and the chance that the disturbance if it occurs will result in bodily harm." 2 Restatement, Torts. The chance of physical contact with a live wire in the street, with consequent electrocution, is much less remote and complicated than that. It is clearly more foreseeable and is the controlling one of all the circumstances for present purposes. In this particular case, it could not be found that it would be reasonable to neglect the protection of those more obviously at risk than the plaintiff.

It is not doubted that due care might require the defendant to adopt some device that would afford protection against emotional disturbances in telephone-users without depriving the traveling public of reasonable protection from live wires immediately dangerous to life. Such a device, if it exists, is not disclosed by the record. The burden was upon the plaintiff to show its practicability. Since the burden was not sustained, a verdict should have been directed for the defendant.

Other exceptions therefore require no consideration.

Judgment for the defendant.

All concurred.

This case is in these books

• Cases and Materials on Torts
• Epstein
• 8th Edition