Bowden v. City of Rockland

• Decision Date: 14 January 1902
• Citation: 51 A. 815,96 Me. 129
• Parties: BOWDEN v. CITY OF ROCKLAND.
• Court: Maine Supreme Court

51 A. 815

96 Me. 129

BOWDEN

v. CITY OF ROCKLAND.

Supreme Judicial Court of Maine.

Jan. 14, 1902.

(Official.)

Report from supreme judicial court, Knox county.

Action by Herbert Bowden against the city of Rockland to recover damages for personal injuries while in the employ of the road commissioner. Case reported, and plaintiff nonsuited.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

C. E. & A. S. Littlefield, for plaintiff.

C. M. Walker, for defendant.

EMERY, J. Where a public highway in Rockland passed along the brink of a deep lime-rock quarry, it had been supported on the quarry side by a retaining wall. This wall proved insufficient and collapsed, and it became necessary to rebuild with a new and thicker wall at that place to make the highway safe and convenient, within the statute. To do this required the wall to be built partly, at least, upon land outside of the located limits of the highway upon that side. The owners of the land—the quarry—sent to the city council a written license to build and maintain such a wall on this land, and to take the materials therefor from the quarry. The street railway company using that highway also stipulated in writing with the city council to bear part of the expense. The city engineer made a plan for what he deemed would be a sufficient wall to make the highway safe and convenient, and gave it to the street commissioner. This latter officer thereupon undertook the work of building the wall according to the plan, and partly, at least, upon the land of the quarry owners, and with material from the quarry. He procured men and teams, and the necessary tools and appliances. Among other appliances, he hired a derrick, not owned by the city, and caused it to be set up under his supervision, to facilitate the work. This derrick was set up in such a way that in operating it the boom slipped from the mast and injured the plaintiff, who was at the time employed in the same work by the street commissioner.

The plaintiff claims that the boom slipped and his injury resulted from the negligence of the street commissioner in setting up the derrick. He further claims that in setting up the derrick the street commissioner was the agent of the city, and was not then acting as a public officer in the performance of official duty.

The rebuilding the retaining wall on a larger scale than the old (that being necessary to make the way safe and convenient) was clearly within the statutory powers and duties of the street commissioner, at least after the city had provided funds and a place therefor. He was expressly directed by statute (Rev. St. c. 18, § 18) to cause sudden injury to ways and bridges to be repaired without delay. By section 11 of the charter of Rockland the street commissioner has "charge of all the work and expenditures upon the streets." No ordinances of the city can limit these statutory powers and duties. It is well settled, by decisions too numerous and familiar to require citation, that a highway surveyor or street commissioner in repairing ways is, and acts as, a public officer; and the municipality within whose limits he acts, and which appointed him and furnished him funds for the work, is not liable for his torts, unless it has interfered and itself assumed control and direction of the work, and of the surveyor or commissioner. Has the city thus interfered and assumed control and direction in this case? is the pivotal question.

While some persons,—probably city officers,—in behalf of the city, procured the written license of the quarry owners for the use of their land and material, and also a stipulation from the street railway company to bear part of the expense of rebuilding the wall, it does not appear that the city council ever passed any vote in the matter, or that...