Bowden v. Derby , 99 Me. 208 ( 1904 )

Strout, J.

The city of Rockland in repairing and protecting Maverick street, was erecting a retaining wall on the side of the street near a deep excavation. The plaintiff was at work upon the wall at the bottom of the excavation. Upon the adjoining bank a derrick was erected, to be used for the handling of stone for the wall. The boom of the derrick fell into the excavation and upon the plaintiff and injured him. For that injury this suit was brought, and plaintiff recovered a verdict for six hundred dollars, which the defendant asks to have set aside as against law and the evidence and for excessive damages.

The defendant was the street commissioner of the city of Rockland, and in that capacity had charge of the erection of the wall. He employed the laborers, who were paid by the city. In all this he acted as a public officer, and was responsible only for reasonable care in the selection of men and materials which he supplied. Beyond this he was under no liability, except for his own acts. The relation of master and servant did .not exist between the defendant and the laborers employed on the work.

The defendant furnished the derrick as a complete appliance to be used in doing the work. It was set up on the ground by Mr. Sweetland, employed by the defendant, who, so far as appears, was a competent person for that purpose.

The plaintiff had nothing to do with the selection or putting up of the derrick. When this case was previously before us, 97 Maine, 536, it was then said by Powers, J., speaking for the Court, that “the defendant supplied it (the derrick) to him as a complete appliance to be used in doing the work in which he was engaged. He had a right to rely that it was all right, — that it was not subject to such defects as could be discovered by the exercise of reasonable care on the part of the defendant. The defendant may have been under no obligation as road commissioner, to furnish the derrick, but, having done so, he assumed the obligation towards those who were to use it, of seeing that it was reasonably safe and suitable, and so maintained.” The plaintiff was at work in the place selected for him by the defendant. The duty was thus imposed upon the defendant to see that that place was reasonably safe.

To apply these principles to this case:

The heel of the boom to the derrick rested against the mast upon a chock of wood attached to the mast for its support. This chock was about eight inches wide. Upon the sides were cleats nailed to the mast to prevent lateral slipping, but it was not otherwise attached or fastened to the mast and it had no appliance for such attachment. The outer end of the boom was raised five or six feet higher than its heel, by a guy or top lift, running from it to the top of the mast. While in this position there was little or no probability that the heel of the boom would fall off from the chock and the cleats. From some unexplained reason, while operating the derrick, the top lift either slipped or became detached from its fastenings, allowing the outer end of the boom rapidly to fall to a point lower than the heel, and the heel came out of its resting place against the mast and fell upon the plaintiff in the excavation below and caused his injury.

The plaintiff claimed that the boom should have been made fast to the mast, to prevent this result, and that the derrick was defective and unsafe for that cause. Its actual condition was apparent to the most casual observation. The jury found the derrick to be defective in this particular, and we are not prepared to say that such finding was incorrect.

The defendant insists that the proximate cause of the injury was not the want of attachment of the boom to the mast, but the failure of the top lift to remain in place and hold the outer end of the boom at a proper elevation, and that this failure was the result of the negligence of Mr. Sweetland, who set up the derrick, for which the defendant is not reponsible, as he did not in fact do this work. In a sense, this may have been the causa causans, but it is nevertheless true that the accident would not have happened if the heel of the boom had been securely fastened to the mast. If two causes operate at the same time to produce a result, which might be produced by either, they are concurrent causes, and in such case each is a proximate cause. Herr v. City of Lebanon, 149 Pa. 226; Milwaukee Railway v. Kellogg, 94 U. S. 474. As said by the court in Ricker v. Freeman, 50 N. H. 420, “ the principle is clearly established that negligence may be regarded as the proximate cause of an injury, of which it may not be the sole and immediate cause. If the defendant’s negligent, inconsiderate and wanton, though not malicious, act concurred with any other thing, person or event, other than the plaintiffs own fault, to produce the injury, so that it clearly appears that, but for such negligent, wrongful act the injury would not have happened, and both circumstances are clearly connected with the injury in the order of events, the defendant is responsible, even though his negligent, wrongful act may not have been the nearest cause in the chain of events or the order of time.” This language was quoted with approval by this Court in Lake v. Milliken, 62 Maine, 242. So it is said in Binford v. Johnston, 82 Ind. 428, that “the intervention of a third person, or of other and new direct causes, does not preclude a recovery if the injury was the natural or probable result of the original wrong.”

“If, it appears that the mischief is attributable to the negligence as a result which might reasonably have been foreseen as probable, the legal liability continues.” McDonald v. Snelling, 14 Allen, 296.

In this case, if the derrick was defective and unsafe as constructed, aud that condition was apparent to the defendant upon a slight inspection, the fact that the top lift got adrift by insecure fastening, from the negligence of Mr. Sweetland who set it up, or otherwise, that result was one likely to happen and to be apprehended as probable, and does not excuse the defendant, although the injury would not have occurred if the boom had remained in place. It must have been foreseen that if from any cause, the outer end of the boom fell below the end at the mast, the boom would not only be likely to slip off from the chock, but would almost inevitably do so, to the danger of those working in the excavation. It was the heel of the boom that fell out and struck the plaintiff. It fell out because insufficiently secured. This fall, therefore, of an unsafe derrick, as a constructed appliance, must be regarded as the proximate cause of the injury,— although the insecure fastening of the top lift concurred to the result as an intervening impetus. Lane v. Atlantic Works, 107 Mass. 104; Insurance Co. v. Boon, 95 U. S. 130; Lund v. Tyngsboro, 11 Cush. 563.

It is a question of fact and not of law, as to what was the proximate cause of an accident. 95 U. S. supra. The jury has found the fault in the derrick to be the proximate cause, and we do not feel authorized to disturb that finding.

The damages awarded by the jury cannot be regarded as excessive for the injury received.

Motion overruled.