Cratty v. Samuel Aceto & Co.

• Decision Date: 04 August 1955
• Citation: 151 Me. 126,116 A.2d 623
• Parties: Bernard R. CRATTY v. SAMUEL ACETO & CO.
• Court: Maine Supreme Court

Page 623

116 A.2d 623

151 Me. 126

Bernard R. CRATTY v. SAMUEL ACETO & CO.

Supreme Judicial Court of Maine.

Aug. 4, 1955.

Cratty & Cratty, Waterville, for plaintiff.

Locke, Campbell, Reid & Hebert, Augusta, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, WEBBER and BELIVEAU, JJ., and THAXTER, Active Retired Justice.

FELLOWS, Chief Justice.

This action for alleged negligence in blasting comes to the Law Court on plaintiff's exceptions to the acceptance of a report of three referees by the Justice of the Superior Court for Kennebec County.

The record shows that it was stipulated and agreed that the defendant Corporation did the blasting in connection with the laying of a sewer along the bank of the Messalonskee Stream in Waterville for the Waterville Sewerage District; that the plaintiff's house is located approximately two hundred (200) feet westerly of the situs of said blasting, and that the plaintiff was in the exercise of due care.

The plaintiff testified 'I noticed a crack in my foundation wall after the blasting commenced, and I felt I could attribute it to the blasting, but I wasn't sure at that particular time. However, I was put on guard and I was upset to a certain degree. It happened just a few days thereafter that I was home early, around eleven o'clock one noon, as I had to go somewhere in the afternoon, for an early lunch. And, at 11:30 there was a particularly large blast, and I immediately went down cellar to look at this crack in the wall to see if it had gotten any larger, and I saw a difference to the crack, which developed right at the foot of the stairs, in that it is and it was still in the process of developing this second crack. It was not in the same place as the first one was, and it was of a nature whereby there was many small cracks at one point, and the strain of these small cracks created a larger crack in the top of the wall. And, this particular crack I know was caused by the blasting because I was there and I saw it, and I saw the defendant working out there, looking out of the window of my house, continuing their operations. And, after that they picked up their tools and went and had their lunch. Now, by way of establishing the damage caused by the defendant company, I also experienced and saw damage in other houses relatively close to mine, and in one house in particular, the house belonging to Frank Hubbard, which was within a hundred feet of my house. I was in it when a blast went off, and the land tiles in the basement shook and rattled against the foundation, and plastic tile popped off the bathroom wall as a result of this blast. I was in when a connection gave way between his furnace and his oil tank on the occasion of one of these blasts. I think I can testify to the fact that this last foundation, in Waterville, runs in an east-west direction, approximately, rather than a north-south direction, and the shock of these explosions followed the line of this slate under the foundations of the various homes and caused the damage.'

The report of the referees was as follows: 'The evidence established that the residence of the plaintiff in Waterville, Maine had been damaged by shocks and vibrations caused by the blasting operations of the defendant in the construction of a trench for the Waterville Sewerage District. The damage consisted of cracks in the foundation of the dwelling. Reasonable compensation for the damage would be $100. The dwelling is located on the same slate ledge foundation on which the blasting was done. This ledge formation runs east and west and the shock and vibrations followed the ledge. Plaintiff saw damage to other nearby dwellings caused by the same blasting operations, which began in January, 1952.

'The plaintiff introduced no evidence as to the amount of explosive being used nor as to the method or manner of its use. He relies wholly on the 'res ipsa loquitur' doctrine to sustain the allegation of negligence. The plaintiff has established that the knowledge on the part of the defendant as to the cause of the damage was superior to his. As previously noted, direct evidence of negligence is absent. There is obviously a duty on the part of the defendant to use great care in blasting ledge in the residential area where the dwellings of the plaintiff and other people were located.

'It is established that the injury to the property of the plaintiff was caused by the blasting of the defendant, that the plaintiff was wholly a stranger to that operation and that the plaintiff had neither control nor knowledge of the method or manner adopted by defendant.

'In view of the decision in the case of Reynolds v. W. H. Hinman Co., 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360, we hold it to be established in Maine that in a blasting case there is no absolute liability and negligence on the part of the defendant must be alleged and proved. In the case before us, it is alleged but not proved by any affirmative or direct evidence. On the facts before us we cannot find the defendant was negligent simply by the application of the 'res ipsa loquitur' doctrine. In our opinion, for these reasons, judgment should be for the defendant.'

The plaintiff filed in the Superior Court as objections to the acceptance of the report of the referees that (1) the referees erred as a matter of law in finding that there was no evidence of negligence on the part of the defendant in conducting blasting operations which damaged the said plaintiff's house, (2) the said referees erred as a matter of law in not finding the defendant had violated its duty of great care in the said blasting operation, (3) the said referees erred as a matter of law in that, W. H. Hinman Co. v. Reynolds, 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360, does not establish the law that there is no absolute liability in blasting cases in Maine, (4) the said referees erred as a matter of law in that they found no negligence on the part of the defendant in the conducting of the said blasting operation, (5) the said referees erred as a matter of law in that they did not find the rule of res ipsa loquitur did apply to the facts of the plaintiff's case as they appear in the record and as they were set forth in the said referees' report, (6) the said referees erred as a matter of law in that the referees did not apply the rule of res ipsa loquitur to the plaintiff's case, (7) the said referees erred as a matter of law in that 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360, does not hold as a matter of law that the plaintiff must prove specific acts of negligence on the part of the defendant and that as a matter of law, this is his only mode of proving the defendant guilty of negligence.

We find some ambiguity in the wording of the Referees' report. If the report went no further than to find the facts adversely to the plaintiff, we would feel constrained to approve the acceptance of the report as the referees were the sole judges of the weight and credibility of the evidence before them. But upon examination of the language of the whole report, we can only conclude that the referees found for the defendant, not upon the facts, but upon their understanding and interpretation of the law applicable in such cases. We think the report clearly discloses the application by the referees of two propositions of law: (1) That negligence in blasting cases must be proven by affirmative or direct evidence, and (2) that, regardless of the factual showing, the doctrine of res ipsa loquitur never has application in blasting cases. The issue here presented is, therefore, whether or not these propositions of law which appear exclusively to have governed the decision of the referees are sound. These legal principles were apparently drawn from the referees' interpretation of the case of Reynolds v. W. H. Hinman Co., 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360, cited by them in their report. If misinterpretation has resulted from any of the language used in dicta in that opinion, then we hasten to clarify the intended scope of the holding therein. The Hinman case came before the Law Court on demurrer. This Court held that negligence on the part of a defendant in a blasting case must be alleged, and the negligence proved. There is no absolute liability from the mere fact that there was a blast of explosives and that as a result there was damage. The referees, however, are in error as a...