Kimball v. Davis

• Decision Date: 15 March 1918
• Citation: 103 A. 154,117 Me. 187
• Parties: KIMBALL v. DAVIS.
• Court: Maine Supreme Court

103 A. 154

117 Me. 187

KIMBALL

v. DAVIS.

Supreme Judicial Court of Maine.

March 15, 1918.

Exceptions from Supreme Judicial Court, York County, at Law.

Action by Milliard A. Kimball against Ivory Davis. There was verdict for plaintiff, and defendant excepts and moves for new trial. Exceptions overruled, and motion denied.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, and HANSON, JJ.

Stone & Stone, of Biddeford, for plaintiff. Emery & Waterhouse, of Biddeford, for defendant.

BIRD, J. This cause comes before this court upon defendant's bill of exceptions and general motion for new trial. It is an action of the case to recover damages occasioned to the property of the plaintiff by fire, sparks, and cinders communicated thereto over and through the lands of others, which is alleged to have escaped from the smokestack of defendant by reason of his negligent and careless use and operation of his steam sawmill, engine, boiler, and smokestack. The jury found for plaintiff.

It appears from the bill of exceptions that plaintiff during the cross-examination of defendant asked him if he had obtained a license to operate and run his engine. The defendant objected to the admission of the question on the ground that the obtaining of a license would have no bearing upon how a man operated a mill, and that, there being no allegation of the maintenance of a nuisance by defendant, the question was immaterial. The plaintiff claimed it to be admissible on the ground that failure to obtain the license required by statute (R. S. c. 23, §§ 21-24) "is evidence of not being willing to comply with the plain statutory enactments of this state," not claiming, if it is not obtained, that defendant is liable, or is not liable from that fact. The question was admitted subject to exceptions, and was answered in the negative.

The license is required by statute to designate the place where the buildings for a stationary engine shall be erected, the materials and mode of construction, the size of the boiler and furnace, and such provision as to height of chimney or flues and protection against fire and explosion as the municipal officers think proper for the safety of the neighborhood. R. S. c. 23, § 21. The rule as to the admission of evidence of the violation of a statute or ordinance by defendant in actions of tort, as declared in the state, is that such violation is not negligence per se, but that the violation of a statute or ordinance prohibiting or requiring a certain course of action is evidence of negligence when the inquiry is whether the doing or the failure to do. an act of that character was negligence, and that, under all the circumstances of such case, the questions of negligence and causal connection should be submitted to the jury. Neal v. Rendall, 08 Me. 69, 77, 56 Atl. 209, 63 L. R. A. 668; Carrigan v. Stillwell, 97 Me. 247, 253, 54 Atl. 389, 61 L. R. A. 163. See Wright v. Maiden & Melrose R. R. Co., 4 Allen (Mass.) 283, 290; Lane v. Atlantic Works, 111 Mass. 136, 140; Finnegan v. Winslow Skate Co., 189 Mass. 580, 582, 76 N. E. 192. And see, also, Gilmore v. Ross, 72 Me. 194, 198; Burbank v. Bethel Steam Mill Co., 75 Me. 373, 382, 46 Am. Rep. 400.

It is, however, unnecessary to discuss the matter further, since counsel for defendant admits that in his charge to the jury the presiding justice instructed it that it must find some causal connection between the omission to procure a license and the alleged negligence of defendant, and otherwise the evidence of defendant's omission would be entitled to no weight, and that such is a correct statement...