Carroll v. Cambridge Elec. Light Co.
| Decision Date | 05 August 1942 |
| Citation | 43 N.E.2d 340,312 Mass. 89 |
| Parties | DENNIS F. CARROLL v. CAMBRIDGE ELECTRIC LIGHT COMPANY. SAME v. CITY OF CAMBRIDGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 7, 1942.
Present: FIELD, C.
J., QUA, DOLAN & RONAN, JJ.
Negligence Electric wires, Trench, Violation of law. Municipal Corporations, Liability for tort, Officers and agents. Public Officer. Way, Public: electric wires. License. Proximate Cause.
The board of aldermen of a city, in granting a permit for the installation of an underground conduit for electric wires in a public way pursuant to an ordinance requiring such a permit, were public officers and the city would not be liable for their failure to see that the conduit was laid in the location specified in the permit; and a provision of the permit that the "exact location" of the conduit should be supervised and approved by two designated city officials did no more than make such officials agents of the board in that respect.
Negligence rendering a city liable for injuries received by a workman when a drill operated by him in a trench dug in the course of construction of a sewer for the city struck a conduit containing wires of an electric company which had been laid in a location several feet distant from that specified in a permit for its laying, was not shown where there was no evidence that anyone for whose acts the city was responsible knew or should have known of the actual location of the conduit or that the place where the workman was drilling was a place of danger because of its presence.
The installation by an electric company of an underground conduit containing wires in a public way in a location different from that specified in a permit granted by the board of aldermen of the city in accordance with an ordinance forbidding such an installation except upon a permit by the board in which the "exact location" should be set forth was a violation of the ordinance and evidence of negligence of the company toward one injured as a proximate result of the violation.
Negligence of an electric company in laying an underground conduit containing wires in a public way in a location several feet distant from that shown on a plan referred to in a permit for the installation granted in accordance with a municipal ordinance could be found to be the proximate cause of injury sustained many years later by a workman when, while in a trench dug in the course of constructing a sewer, in connection with which use was made of such plan, a drill operated by him struck the conduit.
A provision of a permit by a city board to lay an underground conduit in a location shown on a certain plan, that the "exact location" should be
"under the direction and to the satisfaction of" and "approved by" two designated city officials, meant only that those officials were to see that the conduit was laid in the exact location granted, and their approval of another location in which the conduit was in fact laid would not show that the company had complied with the permit.
TWO ACTIONS OF TORT. Writs in the Superior Court dated May 25, 1938, and November 1, 1940, respectively.
The actions were tried before Goldberg, J. H. Lawler, for the plaintiff.
R. J. Lavelle, for Cambridge Electric Light Company. J. H. Smith, Assistant City Solicitor, for the city of Cambridge.
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 an 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, Section 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, 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. Melrose, 305 Mass. 165, 168, 169, -- since, even though it be 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 those 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...
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