Foley v. H. F. Farnham Co.

• Decision Date: 08 December 1936
• Citation: 188 A. 708
• Parties: FOLEY v. H. F. FARNHAM CO. MALLOY v. SAME.
• Court: Maine Supreme Court

188 A. 708

FOLEY

v. H. F. FARNHAM CO.

MALLOY

v. SAME.

Supreme Judicial Court of Maine.

Dec. 8, 1936.

Report from Superior Court, Cumberland County.

Actions by Bartlett Foley and Patrick Malloy against the H. F. Farnham Company. On report.

Judgment for defendant.

Argued before DUNN, C. J., and STURGIS, BARNES, HUDSON, and MANSER, JJ.

Richard E. Harvey, of Portland, for plaintiffs.

William B. Mahoney and Theodore Gonya, both of Portland, for defendant.

DUNN, Chief Justice.

After the conclusion of the evidence, the superior court reported these cases, the parties consenting, for final decision, with regard both to facts and law, on such of the evidence as is legally admissible.

The actions are against the owner and occupier of a sash and blind factory, closely fronting a Portland street, to recover damages for personal injuries to two pedestrians, who, one becoming wearied, approached from the street, and sat upon a doorsill of the building, where a falling sign hurt them.

The counts in the declaration in the writs predicate liability on the theory that the suffering by an individual, in distinction from the public generally, of special damage, from a public nuisance, gives him a private right of action, provided he has shown affirmatively all the other facts which are necessary to entitle him to recover. R.S. ch. 26, § 19; Cole v. Sprowl, 35 Me. 161, 56 Am.Dec. 696; Dickey v. Maine Telegraph Company, 46 Me. 483; Brown v. Watson, 47 Me. 161, 74 Am.Dec. 482; Veazie v. Dwinel, 50 Me. 479; Gerrish v. Brown, 51 Me. 256, 81 Am.Dec. 569; Davis v. Winslow, 51 Me. 264, 81 Am.Dec. 573; Dudley v. Kennedy, 63 Me. 465; McPheters v. Log Driving Co., 78 Me. 329, 5 A. 270; Holmes v. Corthell, 80 Me. 31, 12 A. 730; Davis v. Weymouth, 80 Me. 307, 14 A. 199; Lynn v. Hooper, 93 Me. 46, 44 A. 127, 47 L.R.A, 752; Smart v. Aroostook Lumber Co., 103 Me. 37, 68 A. 527, 14 L.R.A.(N.S.) 1083; Smith v. Preston, 104 Me. 156, 71 A. 653; Cobe v. Banton, 106 Me. 418, 76 A. 907; Mitchell v. Bangor & A. Railroad Co., 123 Me. 176, 122 A. 415; Yates v. Tiffiny, 126 Me. 128, 136 A. 668. See, too, Pennsylvania, etc., Co. v. Graham, 63 Pa. 290, 3 Am.Rep. 549.

The torts of negligence and nuisance may be, and frequently are, coexisting and practically inseparable. A thing may be lawful in itself, and yet become a nuisance through negligence in the maintenance or use of it. McNulty v. Ludwig & Company, 153 App.Div. 206, 138 N.Y.S. 84.

Fault, in the sense the law employs the term, must have been proximately, which means directly, causative of harm. Carl v. Young, 103 Me. 100, 68 A. 593, 14 L.R.A. (N.S.) 425, 125 Am.St.Rep. 290. "The very act * * * is per se proof * * * of negligence, sufficient to sustain the charge of nuisance. State v. Portland, 74 Me. 268, 272, 43 Am.Rep. 586.

Actionable negligence exists only when the party, whose negligence occasions the loss, owes a duty, arising from contract or otherwise, to the person sustaining such loss. Kahl v. Love, 37 N.J.Law, 5. Disregard, and nothing more, of a general duty to the public is not a sufficient basis for a suit by an individual for negligence. Co. Litt. 56; Willes, 74a; Quincy Canal v. Newcomb, 7 Metc. (Mass.) 276, 283, 39 Am.Dec. 778.

In order to maintain an action for injury from negligence, there must be shown to exist some obligation or duty from the person inflicting the injury, to the person on whom it was inflicted, and that such obligation or duty was violated by a want of ordinary care on the part of the defendant. Sweeny v. Old Colony, etc., Company, 10 Allen (Mass.) 368, 87 Am. Dec. 644. There can be no negligence unless there is a duty, which, through either commission or omission, has not been observed. Boardman v. Creighton, 95 Me. 154, 49 A. 663.

A public nuisance, on the other hand, may be said to be anything wrongfully done, or permitted, which violates public rights, and produces a common injury; when it injures that portion of the public that necessarily comes in contact with it. 20 R.C.L. 383.

Nuisance is a violation of an absolute duty; negligence, a failure to use the requisite degree of care in the particular circumstances. Herman v. Buffalo, 214 N.Y. 316, 108 N.E. 451. Whenever an absolute duty is imposed, the question ceases to be one of negligence. Pennsylvania, etc., Co. v. Graham, supra.

A nuisance, in many if not in most, instances, especially with respect to buildings or premises, presupposes negligence. Uggla v. Brokaw, 117 App.Div. 586, 102 N.Y.S. 857, 862.

The maintenance on private property of a dangerous menace to public travel is a nuisance; and, when the danger is of such character as ought to awaken in a prudent owner a reasonable foresight of hurt to highway travelers, the duty to take care is undeniable. Ruocco v. United Advertising Corporation, 98 Conn. 241, 119 A. 48, 30 A.L.R. 1237.

"A nuisance * * * consists in a use of one's own property in such a manner as to cause injury to the property, or other right, or interest of another." Norcross v. Thorns, 51 Me. 503, 81 Am.Dec. 588.

If the sign was a nuisance, it was so because it endangered the public use of the way. Staples v. Dickson, 88 Me. 362, 34 A. 168. The hurt to plaintiff must come, qua nuisance, to give a cause of action. Jackson v. Castle, 80 Me. 119, 13 A. 49; Whitmore v. Brown, 102 Me. 47, 58, 65 A. 516, 9 L.R.A.(N.S.) 868, 120 Am.St.Rep. 454. Their hurt must be different in kind as well as degree from that suffered by others. Franklin Wharf Co. v. Portland, 67 Me. 46, 24 Am.Rep. 1; Taylor v. Portsmouth, K. & Y. St. Railway, 91 Me. 193, 39 A. 560, 64 Am.St.Rep. 216; Whitmore v. Brown, supra.

There is little, if any, dispute in the evidence reported.

The building, built in 1912, was a wooden one, the walls covered with galvanized iron; it had always been tenanted by defendant.

The sign, 21 feet long, as many inches wide, of beveled edge, proclaiming defendant's name, was, at the completion of the building, put up by a sign maker; he removed it several times, for the purpose of repainting, the latest occasion five years or more before it fell.

Meantime, security of the sign, flat against the building, had not been a matter of attention; however, nothing appears to have indicated, before the sign fell, that it was unstable.

The sign was fastened, 13 feet from the ground, over double doors 6 feet wide, styled by a witness (to differentiate from other doors, one marked "office") the "shipping door," in the center of the front of the building, by pieces of iron; one end of each iron was turned to form a "hook" for the top, and a "lug" for the bottom of the sign; the other end of the iron (it resembled a spike) was driven into the wall.

The sill on which plaintiffs sat was 7 1/2 inches wide; it projected from beneath the shipping door to within 4 inches of the street line.

The space between building and street was paved; nothing visibly marked the location of the dividing line between the street and defendant's premises.

Sunday, August 5, 1934, the day of the occurrence in question, was bright and fair; hourly wind velocity, varying from 19 to 25 miles, was not extraordinary.

Of the plaintiffs, Patrick Malloy, aged 60 years, lived in a house not far from the sash factory. Industrial accident, of 4 years standing, had totally incapacitated him from work.

On the day of definite mention above, he was out for an afternoon walk. Coming to a bridge, he stayed for 10 minutes; thence to Commercial street, to near defendant's building; his entire travel, he estimated, while giving testimony, at 300 to 400 yards. On his sworn word, he was, from his walk, tired, and his leg ached.

Bartlett Foley, the other plaintiff, 50 years old, a common laborer, came along on foot; the two men, inferably acquaintances or friends, went to, and seated themselves on, the doorsill.

The building was closed; no persons are shown to have been in it; none, except plaintiffs, outside.

Plaintiffs, as they testify, after being on the sill 5 minutes, began making ready to go to their homes.

Their postures were: Malloy had his left leg straightened out, his right hand outstretched to his cane, which pointed into the street, in which direction his body, too, was inclined; Foley's feet were on the pavement; he states that his back was not against the door.

It was under these circumstances that the sign dropped, suddenly and unexpectedly, without previous warning, striking plaintiffs, and fracturing their spines.

A witness who came to the scene shortly, and took note, says that the fallen sign was on the pavement, 3 feet from the building; of the fasteners, two remained on the sign; of the loosed ones, "the ends were rusted where they had gone into the building."

Counsel for plaintiffs instances Murray v. McShane, 52 Md. 217, 36 Am.Rep. 367, and strenuously insists it an analogous case.

There narratio, or declaration, averred, among other things, that the plaintiff, traveling afoot, on a public way, turned from the sidewalk to the doorway of an abutting building to tie his shoe string, and, while sitting in the doorway for such purpose, his head projecting over the sidewalk, a brick from the wall struck him.

Narratio was bad on demurrer; on appeal, reversed.

The proof, in the cases in hand, does not show that either plaintiff, when injured, was a traveler on a public way. Both had been, and intended continuing, but they had not resumed traveling.

The evidence may afford an inference that, had plaintiffs been walking, or standing near the edge of the street, the falling sign might have done them damage. What...