City of Worcester v. L. Rocheford & Sons

• Decision Date: 24 May 1938
• Citation: 300 Mass. 261,15 N.E.2d 266
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CITY OF WORCESTER v. L. ROCHEFORD & SON, INC.

300 Mass. 261

15 N.E.2d 266

CITY OF WORCESTER v. L. ROCHEFORD & SON, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1938

April 4, 1938.

Present: RUGG, C.

J., LUMMUS, QUA DOLAN, & COX, JJ.

Evidence Presumptions and burden of proof. Practice, Civil, Findings by judge. Fire. Proximate Cause.

No error appeared in a finding for the defendant by a judge hearing without a jury an action at law for damage resulting from a fire, if he was unable to find by a fair preponderance of credible evidence that the fire was the result of the defendant's acts rather than of some cause for which he was not responsible.

Where subsidiary facts found by a judge hearing an action at law without a jury did not as a matter of law require a finding for the plaintiff, a finding for the defendant was final.

CONTRACT. Writ in the Superior Court dated April 6, 1932. The case was heard without a jury by Broadhurst, J., who found for the defendant. The plaintiff alleged exceptions.

H. W. Cole, (W.

Hecht of New York & C. W. O'Brien with him,) for the plaintiff.

P. R O'Connell, (D.

Whitcomb with him,) for the defendant.

LUMMUS, J. The defendant was the general contractor engaged in building a schoolhouse for the city of Worcester, and received large sums under the contract as the work progressed. William R McLoughlin, Inc., installed the electrical wiring under a separate contract. The schoolhouse was nearly completed when it was practically destroyed by fire on the night of April 21, 1931. Insurers of the city against loss by fire paid the loss, amounting to $384,200.57, and as assignees of the rights of the city brought in the name of the city this action of contract against the general contractor, alleging that the fire was caused by negligence of the general contractor or its servants. The judge, sitting without a jury, found for the defendant. The case is here on the plaintiff's exceptions.

There is little doubt that the fire was of electrical origin, and was occasioned by the introduction into the building of a portable cable about fifty yards long for the purpose of conducting electrical current to a saw and a planer, each motor-driven, which the defendant was temporarily operating in the auditorium. The cable was connected with the feeder wires at the front of the building just above the temporary front door. The portable cable was carried into the building by the defendant, while the feeder wires were installed by the electrical contractor. The judge was unable to find who made the connection.

The evidence including expert testimony, upon which the judge sought to find the cause of the fire, was various and inconsistent. A number of electrical defects could have been found upon the evidence. Some of them, like the absence of proper fuse protection at the saw and the planer, the defective condition of each, and the possible injury to the insulation of the portable cable, were within the control of the defendant, and might furnish evidence of the defendant's negligence. The plaintiff was not bound to show the exact train of events that caused the fire. It would be enough to show by a preponderance of the evidence that the fire, whatever its physical cause, resulted from negligence of the defendant. McNicholas v. New England Telephone & Telegraph Co. 196 Mass. 138 , 141. Glaser v. Schroeder, 269 Mass. 337 , 340. Cushing v. Jolles, 292 Mass. 72 , 74. Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234 , 235. Fone v. Elloian, 297 Mass. 139 , 140-141. But some of the electrical defects of which there was evidence could have been found not within the control of the defendant. There was evidence that there was a lack of fuse protection in the connection of the cable with the feeder wires, but the judge was unable to find that the defendant made that connection. Where a tribunal of fact is unable to find by a preponderance of the evidence that the...