Carroll v. Cambridge Elec. Light Co.

• Decision Date: 05 August 1942
• Parties: CARROLL v. CAMBRIDGE ELECTRIC LIGHT CO. SAME v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 89

43 N.E.2d 340

CARROLL

v.CAMBRIDGE ELECTRIC LIGHT CO.

SAME

v.CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

Aug. 5, 1942.

Exceptions from Superior Court, Middlesex County; L. Goldberg, Judge.

Separate actions by Dennis F. Carroll against Cambridge Electric Light Company and against City of Cambridge to recover damages for personal injuries caused by defendants' negligence. There were judgments for defendants, and plaintiff brings exceptions.

Orders in accordance with opinion.

H. Lawler, of Boston, for plaintiff.

R. J. Lavelle, of Lowell, for Cambridge Electric Light Co.

J. H. Smith, Asst. City Sol., of Cambridge, for City of Cambridge.

Before FIELD, C. J., and QUA, DOLAN, and RONAN, JJ.

DOLAN, Justice.

These are two actions of tort in which the plaintiff seeks to recover compensation for personal injuries alleged to have been caused by the negligence of the respective defendants. At the close of the plaintiff's evidence each of the defendants filed a motion for a directed verdict in its favor and in each case the motion was allowed, subject to the plaintiff's exceptions.

The evidence would have warranted the jury in finding the following facts: On May 19, 1938, the plaintiff was employed by the works progress administration (hereinafter referred to as the W. P. A.) in assisting in removing and old sewer at the intersection of Norfolk and Austin streets, in Cambridge, and in the construction of a new sewer. He was operating an electric drill known as a ‘jack hammer’ and while drilling in a trench, standing ankle deep in water, the drill struck a conduit containing electric wires, owned and maintained by the defendant electric light company. An explosion ensued and the plaintiff was injured. No one had told him of the existence of any electric wires at the place of the accident, or warned him of any danger.

The work was being done by the W. P. A. for the city, and its superintendent of sewers testified that he was on the job two or three times a day; that it was his duty ‘to see that they had equipment and materials, and if there was any question whether or not the work was being carried on right * * * [he] would instruct * * * [his] supervisors and foremen on the job’; that he had nothing to do with the W. P. A. men; that he had supervision of the work and gave instructions to his foremen on the job; and that they were supposed to instruct the W. P. A. supervisors. The assistant city engineer went to the location frequently in connection with his duties as an employee of the city. He identified certain blue prints of plans, some of which were filed in the city engineer's office when the company received a permit to lay a conduit near the place where it had actually been constructed subsequently. These plans were filed in accordance with an ordinance of the city (c. 14, § 15), which provided that no conduits should be laid ‘except by order of the board of aldermen previously obtained, in which the exact location of each [conduit] shall be duly set forth.’ The order of the board of aldermen specified that the conduit was to be located in accordance with the plans to which reference has just been made. Those plans, which, so far as the record discloses, were the only plans available to the city at the time of the accident, show the grant of location of the conduit to have been at a place about twenty feet distant from the northeast corner of Norfolk and Austin streets, and at a point about eight feet distant from the place where the conduit had actually been laid by the defendant electric light company, and where the plaintiff was working when injured. The conduit was not laid in the location granted, but was built at a different location shown on a plan dated 1940 which was prepared by the electric light company. The order granting the location provided that ‘The kind and quality of material used in the construction of said duct or conduits, and exact locations shall be under the direction and to the satisfaction of the City Engineer and the Superintendent of Streets, and shall be approved by them.’

It is unnecessary to recite the principles of law governing the liability of municipalities for negligence in the construction and operation of sewer systems, concerning which reference may be had to Galluzzi v. Beverly, 309 Mass. 135, 137, 138, 34 N.E.2d 492, and cases cited, or to determine the exact relationship existing between the plaintiff and the city at the time of the accident-see, however, Towner v. City of Melrose, 305 Mass. 165, 168, 169, 25 N.E.2d 336-since, even though it is assumed for the purpose of the case against the city that it would be liable if the plaintiff's injuries were caused by its negligence, we are of opinion that the evidence would not warrant a finding that his injuries were so caused.

There is no evidence in the present cases that the city had any knowledge or properly should have had knowledge of the actual location of the conduit through anyone for whose acts it would be responsible. Consulting the plans filed when the location was granted in 1907, the actual location of the conduit would not have been discovered, and the sewer department through its superintendent would have been warranted in assuming that the conduit was located as shown on these plans. No duty rested upon the defendant city to take precautions to guard against dangers of which it could not be charged with knowledge. The evidence would not warrant a finding that the city knew or should have known that the place where the plaintiff was working when injured was a place of danger or risks other than those incidental to his employment. See Cotoia v. Seale, 306 Mass. 101, 103, 27 N.E.2d 706, and cases cited. Keough v. E. M. Loew's, Inc., 303 Mass. 364, 365, 21 N.E.2d 971. The plaintiff has argued, however, that there was a duty upon the officials of the city to see that the conduit was laid in the location granted. In granting the location for the conduit in 1907 the city's board of aldermen acted not as its representative but as an independent board on behalf of the Commonwealth, G.L.(Ter.Ed.) c. 166, § 22; Lynch v. Lowell Electric Light Corp., 263 Mass. 81, 86, 160 N.E. 413, and the city is not liable for any injuries resulting from the failure of the electric light company to lay the conduit in the location granted, nor from any failure of any city officials to see that the conduit was so constructed. No duty in the matter is imposed by law other than upon the board of aldermen of the city, and the direction in the order granting the location that the ‘kind and quality of material used in the construction of said duct or conduits, and exact locations shall be under the direction and to the satisfaction of the City Engineer and the Superintendent of Streets, and shall be approved by them,’ did no more than make them agents of the board of aldermen in the matter for whose acts the city is not liable. Flood v. Leahy, 183 Mass. 232, 236, 66 N.E. 787;Cheney v. Barker, 198 Mass. 356, 364, 84 N.E. 492, 16 L.R.A.,N.S., 436; Metropolitan Home Telephone Co. v. Emerson, 202 Mass. 402, 405, 88 N.E. 670;Sweeney v. Boston, 309 Mass. 106, 110, 34 N.E.2d 658, and cases cited; Reitano v. City of Haverhill, 309 Mass. 118, 122, 123, 34 N.E.2d 665. See Dadderio v. City of Pittsfield, 301 Mass. 552, 558, 559, 17 N.E.2d 894. There was no error...