Dube v. City of Lewiston

• Decision Date: 17 March 1891
• Citation: 22 A. 112,83 Me. 211
• Parties: DUBE v. CITY OF LEWISTON.
• Court: Maine Supreme Court

22 A. 112

83 Me. 211

DUBE

v. CITY OF LEWISTON.

Supreme Judicial Court of Maine.

March 17, 1891.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

This was an action on the case to recover damages for injuries received by the plaintiff on the 27th day of July, 1888, while employed with others in excavating a trench for a sewer on Ash street, in the city of Lewiston.

The jury rendered a verdict of $4,033 for the plaintiff. Defendant's counsel requested the presiding judge to give the following among other instructions to the jury: "There is no evidence in the case for the jury to consider that Edward Cloutier (the foreman in charge of the work) was anything more than a fellow-servant with the plaintiff in the work in which they were engaged at the time and place of the accident." The presiding justice declined to do so, and the defendant excepted.

George C. Wing, for plaintiff.

Newell & Judkins, for defendant.

WHITEHOUSE, J. The plaintiff was engaged with Edward Cloutier and five other laborers in digging a trench for a pipe sewer, about 100 feet in length, on Ash street, in Lewiston. No shoring was employed to support the sides of the trench, and when the excavation had reached a depth of 8 or 9 feet one side caved in, and a large quantity of earth fell upon the plaintiff, and injured him. In this action against the city to recover damages, the jury found in favor of the plaintiff.

The construction of sewers authorized by the city council was under the general supervision of the street commissioner, but the crew in which the plaintiff was at work, at the time of the injury, was under the immediate direction of Edward Cloutier, who was foreman in charge of that particular job, the street commissioner incidentally inspecting the work from time to time as it progressed. In the city tool-house, 30 rods distant, was deposited a quantity of lumber designed to be used for shoring in the construction of sewers, and suitable and available for that purpose. Cloutier had full knowledge of this. He had been directed by the street commissioner to pile the lumber there to be used for that purpose when required.

At the time of the accident the street commissioner was personally engaged in the work of paving in another part of the city, and the operations on Ash street were intrusted to Cloutier. The commissioner had no special knowledge of the character of the road-bed or the nature of the soil at that point. Nothing had been disclosed, before the commencement of the work, indicating a necessity for any mechanical contrivance to protect the workmen against falling earth. The location and erection of any such structures necessarily devolved upon the workmen, acting under the direction of their foreman, as the digging progressed. The duty of determining when the exigency of the situation required such protection had not been assumed by the street commissioner. He did not undertake to give this piece of work his immediate supervision, and did not have the personal knowledge of its character required to form a correct judgment upon that question. The prosecution of this kind of work was not fraught with any peculiar perils not well understood by the plaintiff and Cloutier. If there were exceptionally dangerous conditions attaching to the soil on Ash street, they were open to the observation and knowledge of experienced workmen, or ascertainable by the exercise of reasonable care and attention on their part. The commissioner discharged his duty when he assigned to the work an experienced and competent foreman, and furnished him with suitable and sufficient materials for any appliances necessary for the safe conduct of the work. The use and application of the materials formed a part of the duty of the workmen. Kelley v. Norcross, 121 Mass. 508; Zeigler v. Day, 123 Mass. 152; Floyd v. Sugden, 131 Mass. 563: Clark v. Soule. 137 Mass. 380; McDermott v. Boston, 133 Mass. 349.

The evidence discloses no omission of duty on the part of the street commissioner which would render the city liable in this action; and, if Cloutier's failure to place shoring against the side of the trench where the earth fell can be deemed negligence, it...