UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 1, 1975.
HEATHER C. SMITH, ADMINISTRATRIX OF THE ESTATE OF DURWOOD P. SMITH, PLAINTIFF-APPELLEE,
VERMONT YOUNG WOMENS CHRISTIAN ASSOCIATION, INC. D/B/A CAMP HOCHELAGA, EDGAR A. WELCH AND BETTE ANN WELCH D/B/A UNITED RENT ALLS, AND CITIZENS UTILITIES COMPANY, DEFENDANTS-APPELLANTS
Appeal from decision of United States District Court for the District of Vermont before James S. Holden, Chief Judge, and a jury, awarding plaintiff $100,000 damages because of negligence of defendants. Affirmed.
Lumbard, Moore and Feinberg, Circuit Judges.
Author: Per Curiam
Defendants Citizens Utilities Company and Edgar A. and Bette Ann Welch, doing business as United Rent Alls, appeal from denial of motions for a new trial or judgment notwithstanding the verdict entered after a two-week jury trial in the United States District Court for the District of Vermont, James S. Holden, Chief Judge. This diversity action was brought after plaintiff's husband was electrocuted while holding an aluminum pole saw, 18 feet in length, which he had rented from United to trim trees at a "Y" camp. The saw apparently had come in contact with a Citizens Utilities power line. The jury awarded plaintiff $100,000 against appellants and the camp.*fn1 We affirm.
The issues here are simple. United and Citizens Utilities both claim that the deceased was contributorily negligent. United also claims that it was not negligent, but Citizens Utilities does not appeal the determination of its negligence.
Appellants have a heavy burden to overcome in the jury's findings. See 5A J. Moore, Federal Practice para. 50.07 (2d ed. 1948), 6A id. para. 59.08. Apparently the trial judge, long familiar with Vermont law,*fn2 did not believe that they had sustained that burden when he denied defendants' motions; neither do we. For example, on the question of the deceased's contributory negligence, on which defendants had the burden of proof,*fn3 there was an issue as to whether the deceased should have seen the wires; there was also evidence from which the jury could have found that the deceased reasonably believed that the wires were insulated or not energized.*fn4 This would, of course, negate contributory negligence. See, e.g., Stoffel v. New York, N.H. & H.R.R., 205 F.2d 411, 413 (2d Cir.), cert. denied, 346 U.S. 898, 98 L. Ed. 399, 74 S. Ct. 222 (1953). Similarly, since United customarily warned persons who rented aluminum ladders not to use them near power lines, the jury was free to find that it was negligence not to warn the deceased about the same danger inherent in aluminum pole saws. Cf. Harrington v. Sharff, supra.
Judge Lumbard concurs in the result.