Tibbetts v. Cent. Me. Power Co.

• Decision Date: 28 September 1946
• Citation: 49 A.2d 65
• Parties: TIBBETTS v. CENTRAL MAINE POWER CO.
• Court: Maine Supreme Court

49 A.2d 65

TIBBETTS

v.CENTRAL MAINE POWER CO.

Supreme Judicial Court of Maine.

Sept. 28, 1946.

Action on the case by Edward F. Tibbetts against Central Maine Power Company to recover damages for destruction of plaintiff's dwelling house by fire. On exceptions to the denial of the defendant's motion for a directed verdict and on defendant's motion for new trial.

Verdict set aside and new trial granted.

Ralph A. Gallagher, of Damariscotta, and Reginald H. Harris, of Boothbay Harbor, for plaintiff.

Perkins, Weeks & Hutchins, of Waterville, William H. Dunham, of Augusta, and Charles M. Giles, of Damariscotta, for defendant.

Before STURGIS, C. J., and THAXTER, HUDSON, MURCHIE, TOMPKINS, and FELLOWS, JJ.

TOMPKINS, Justice.

Action on the case to recover damages for the destruction of the plaintiff's dwelling house by fire. The plaintiff in his writ set forth three counts for negligence, (1) alleging failure of the defendant to repair or replace defective wires after notice, (2) failure of the defendant to disconnect or shut off the power in the defective wires after notice, and (3) negligence of the defendant in attaching wires to the limb of an apple tree in a place exposed to storm. The defendant pleaded the general issue. Trial by jury.

The third count in the plaintiff's writ was eliminated from the consideration of the jury.

The plaintiff was under guardianship at the time of the bringing of the action and at the time of the trial. Maud Bernice Tibbetts, wife of the plaintiff, was the duly qualified guardian. The defendant is a public utility corporation engaged in the business of furnishing electricity for light and power.

After the close of all the testimony the defendant moved for a directed verdict, which motion the presiding Justice denied, to which denial the defendant seasonably excepted. After verdict for plaintiff, defendant filed a general motion for a new trial. The motion raises the same question for consideration as does the exception. Symonds v. Free Street Corporation, 135 Me. 501, 200 A. 801, 117 A.L.R. 986. Inhabitants of Fort Fairfield v. Inhabitants of Millinocket, 136 Me. 426, 12 A.2d 173. We shall consider only the motion for a new trial.

The defendant does not press the contention that the damages were unduly excessive as ground for a new trial. In considering a motion for a new trial the evidence must be viewed in the light most favorable to the successful party. The defendant has the burden of proving that the jury verdict is manifestly wrong. Marr v. Hicks, 136 Me. 33, 1 A.2d 271; Dube v. Sherman, 135 Me. 144, 190 A. 809; Cameron v. Lewiston, Brunswick & Bath Street Railway, 103 Me. 482, 70 A. 534, 8 L.R.A.,N.S., 497, 125 Am.St.Rep. 315. The plaintiff does not rely upon the doctrine of res ipsa loquitur. ‘To entitle the plaintiff to recover he must show, first, that the defendant was guilty of negligence; the injury itself does not import negligence.’ Consequently he must show that the defendant's negligence caused the injury. ‘There must be a visible connection of cause and effect. It is not enough to show that the defendant's negligence was adequate and sufficient to cause it-that it might have caused it-he must show that it did cause it; that it was the preponderating, efficient cause of the injury.’ Lesan v. Maine Central Railroad Co., 77 Me. 85.

The plaintiff was the owner in fee of the dwelling house alleged to have been destroyed by the defendant's negligence. The house was located at Christmas Cove in South Bristol, Lincoln County. The structure consisted of the main house, the ell, and the annex to the ell some 10 x 13 feet in length and breadth, and between eight and nine feet high, with a flat roof. The latter structure is referred to in the testimony as the washroom, the laundry, or the little ell. The entire set of buildings was constructed of wood and painted. With the exception of the laundry the structure had been built about 75 years. The fire that destroyed the buildings was first discovered by the witness Theodore H. Eaton between 3 and 4 o'clock in the morning of September 19, 1944. According to the testimony of Mrs. Tibbetts, the guardian, the building had been vacant from the very last of August 1944 up to the time of the fire. Up to the last of August it had been occupied by summer tenants. The house was heated by an open fireplace and one or two stoves.

The 110 volt, two wire service that supplied the electricity to the destroyed building led from pole No. 19 maintained by the defendant in the highway. The wires led across the plaintiff's land and were attached to the large limb of an apple tree standing on this land. The tree stood in a sheltered place and was about 20 feet from the laundry. At the apple tree the wires were affixed to the limb by insulated fittings on an iron bracket bolted to the limb. From the apple tree the wires led to the finish board upon the north side of the laundry, to which they were attached by porcelain knobs. These knobs were higher than the weather head on the conduit. The wires looped down from the porcelain knobs and entered the weather head on an upright galvanized iron conduit or pipe. The lead in wires were No. 6, and the ones entering the conduit leading to the switch and ground installation were No. 8. The current available had the switch been closed was 110 volts. The Hyson cottage which the witness Eaton occupied at the time of the fire, and the buildings destroyed by the fire, received electricity from the same pair of wires. An employee of the defendant had sealed the switch open sometime prior to the fire so that no current would flow into the house beyond the switch. The switch was in the service entrance box located on the inside wall of the laundry. The two service wires reached the box through a porcelain bushing the upright galvanized iron conduit or pipe, which was on the outside of the north wall of the laundry near the junction of the laundry with the ell. The porcelain bushing was missing at the time of the trial. The pipe had a galvanized iron arm or tee running at right angles to it through the wall of the laundry to the switch box. The wires entered the switch box through this arm. The service installation was 16 years old and of standard type, and no radical changes would have been made if installed under present day methods.

On the Thursday preceding the fire which occurred on the following Tuesday morning there was a high wind, referred to as a hurricane. On the following Friday morning Maud Bernice Tibbetts discovered that the limb of the apple tree to which the wires were affixed had fallen. The butt of the limb was still clinging to the tree and was several feet above the ground.

The other end was down and resting on the smaller branches of the broken limb. She testified that the wires were sagged, and up at the corner of the house where they were attached to the laundry were pulled away and the casing was all ragged, and the wires were swaying in the wind. She did not see the wires again before the fire. On the Saturday following this discovery her daughter, Geraldine Kelsey, accompanied by Lettie Kelsey, her mother-in-law, notified the defendant company that the house needed attention, that the limb was down. The mother-in-law at the same time said ‘I saw the house Friday afternoon and I think they should be attended to at once in case of fire, or something like that.’ This notification was delivered verbally at about 7 o'clock on Saturday evening. Lewis Kelsey, the plaintiff's witness, testified that on this Tuesday morning he saw the glow of the fire from a distance of two miles, that he was awakened by the siren of the fire engine. When Mr. Kelsey arrived the whole outside of the laundry was ablaze. He could not tell at what point the fire started nor whether the fire started on the inside of the building or on the outside.

Charles L. Gammage was called by the plaintiff and testified as an expert on house wiring and on electrical installation and maintenance. This witness on direct examination was asked an hypothetical question as to the cause of the fire. His answer was: ‘Well, as I say, assuming those cases to be true, the wire had chafed there on the top of the pipe, heating the pipe to a point where it ignited the building.’ On cross-examination with reference to this answer to the hypothetical question he said ‘I definitely said I did not know what caused the fire. I was asked what could cause the fire.’ He further said if there was an arcing at the end of the pipe it would be burned but not necessarily any pitting, and after going through the fire, and the lapse of 13 months, the burning...