Lawrence v. Larsen

• Decision Date: 02 June 1960
• Citation: 156 Me. 168,163 A.2d 364
• Parties: Iris LAWRENCE, P.P.A. Leslie Lawrence v. Oskar LARSEN.
• Court: Maine Supreme Court

Page 364

163 A.2d 364

156 Me. 168

Iris LAWRENCE, P.P.A. Leslie Lawrence v. Oskar LARSEN.

Supreme Judicial Court of Maine.

June 2, 1960.

Bishop & Stevens, Presque Isle, for plaintiff.

Scott Brown, Houlton, for defendant.

Before WILLIAMSON, C. J., WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

TAPLEY, Justice.

On exceptions. These actions were brought to recover for personal injuries sustained by Iris Lawrence, infant daughter of Leslie Lawrence, and for hospital and medical expenses incurred as a result of said injuries. They were tried together at the September Term, 1958 of the Superior Court, within and for the County of Aroostook. After all the evidence was in and all parties had rested, the defendant moved for directed verdicts. The motions were denied, the cases argued and, before submission to the jury, the Court, upon further consideration of defendant's original motions for directed verdicts, granted them. The cases are before this Court on exceptions to the directions of the verdicts.

At the time of the injury the father of the child, Leslie Lawrence, was employed by Lyle Wheeler who owned the premises occupied by Mr. Lawrence and, as part of his compensation for such employment, he was furnished a dwelling house on Mr. Wheeler's land. Mr. Wheeler planned to construct a foundation upon which to move his house occupied by Lawrence and employed Griffin Brothers to excavate preparatory to putting in the foundation. Oskar Larsen, the defendant, was employed by Mr. Wheeler to build the forms for the cellar, pour the concrete and move the dwelling onto the foundation. The concrete foundation was started and completed by the defendant between the middle of July and the latter part of July, 1956.

Mr. Lawrence occupied the dwelling with his wife and five children, the oldest being six years of age, the youngest about three months and Iris, at the time of the accident, was four years old. On the day the accident occurred Mr. and Mrs. Lawrence had gone to the County Fair and had left the children in the care and custory of a baby sitter of the age of thirteen years who had performed that function on the average of three times a week. While the baby sitter was in charge of the children she permitted them to play in a pile of dirt close by the foundation of the cellar. While the baby sitter was in the house caring for the baby and the other four children were outdoors playing, she heard one of the children crying, whereupon she went out of doors to investigate and there she found Iris lying on the floor of the newly constructed cellar foundation. She climbed down a ladder which led from the top of the foundation to the cellar floor on the side opposite to where the child was lying, took her in her arms, carried her up the ladder and then into the house.

The foundation was by measurement 18 X 32 feet, with walls 8 inches in thickness, and with depth of approximately 6 feet. The floor of the cellar was of cement. The distance between the southerly end of the dwelling house and the northerly end of the cellar wall was approximately 10 feet. A week after the cement was poured the area was backfilled so that the top of the cellar foundation would be in some spots a foot above the ground and in others 18 inches. Mr. Larsen, the defendant, testified that after the foundation was completed he caused the forms to be removed from the cement walls, cleaned the lumber and placed it some 40 or 50 feet away from the foundation. He also testified that he warned the parents of Iris Lawrence that they should keep the children away from the cellar 'so they wouldn't get hurt.' After the concrete was poured, the forms were removed and the foundation permitted to go through a period of hardening. There was no fence or barricade around the cellar wall nor was the opening covered in order to keep the children from falling into the cellar should they by chance be playing on the top of the cellar walls. The defendant did not perform the work of moving the house onto the foundation as he was not equipped to do such work. The accident happened about two weeks after the foundation had been constructed. Mr. Larsen further testified that it was part of his obligation to Mr. Wheeler, the owner of the premises, to engage someone to move the house, which he did by hiring a sub-contractor.

The question presented here is whether under the circumstances of this case there is sufficient evidence for jury presentation in order that they might determine negligence or lack of negligence on the part of the defendant.

Counsel for the defendant contends that the plaintiff has failed to prove a necessary element of her case, viz.: there is not sufficient evidence to establish by a preponderance of the evidence that she fell into the cellar. Plaintiff's declaration says in part:

'And as a result of the aforesaid negligent acts of the defendant, by his duly authorized agents and employees the said Iris Lawrence, while lawfully on said premises and while exercising due care and caution, and being wholly unaware of the unsafe, dangerous and hazardous condition of the cellar excavation; and being unable to ascertain with all due diligence the unsafe, dangerous and hazardous condition of the said cellar excavation; fell into the said cellar excavation then and there having a depth of seven feet, and that by reason of the said Iris Lawrence's fall as aforesaid, * * *.'

thus the plaintiff alleges a fall into the cellar and this, being an essential allegation, must be proven. What proof then was adduced by the plaintiff to support this allegation? The only testimony bearing on this subject was that of the baby-sitter, Pamela Fox, when she testified:

'Q. Did anything attract your attention about supper time? A. Yes, that is when Iris fell in.

'Q. Where were you at that time, in the house or out of the house? A. In the house.

'Q. Were any of the children in the house with you at that time? A. The baby.

'Q. The other four children were outdoors playing? A. Yes.

'Q. Tell the jury what you heard? A. I either heard when she fell and she was crying or someone came in and told me, I can't remember.

'Q. Did you hear any noise outdoors? A. I can't remember.

'Q. You say you heard some crying? A. Yes, I heard her cry.

'Q. What did you do? A. I went out.

'Q. What did you see when you got out there? A. She was laying on the cellar floor.

'Q. Now were there any walls or barriers up around this foundation wall? A. No.

'Q. In other words, it was all open? A. Yes.

'Q. After you saw her laying down what did you do? A. I climbed down the ladder and carrier her up.

'Q. You say there was a ladder down into the cellar? A. Yes.

'Q. Where was the ladder in relation to where Iris was laying? A. She was laying near the other end where the ladder was. She wasn't laying where the ladder was but the other end of the cellar.

'Q. She was lying on one end and the ladder was on the other? A. yes.

'Q. Was she lying close to the wall? A. Yes she was.

'Q. Where were the other three children? A. They were playing.

'Q. How did you get Iris out of the cellar? A. I carried her up the ladder.'

This testimony of the baby-sitter comprises all of the evidence in the case upon which the jury would be asked to make a factual determination that the child fell into the cellar. Is the nature and the quality of this evidence sufficient to support a jury finding of the fact? We think not. A finding based on this evidence must be one of conjecture, guesswork or even imagination. Under the evidence submitted it would be possible that the child was pushed by her playmates into the cellar or that she of her own volition descended into it by means of a ladder and while playing about the floor fell and sustained the injury. There is no direct evidence of a fall. Can the circumstance of the child being found on the cellar floor near the wall be sufficient upon which to base an inference that she fell into that position?

The case of Mosher v. Inhabitants of Smithfield, 84 Me. 334, 24 A. 876 is an action sounding in negligence wherein the plaintiff sued the Inhabitants of the Town of Smithfield to recover damages for personal injuries sustained when she was riding in a horse drawn vehicle and was thrown from the vehicle when the horse fell in crossing a town bridge. The plaintiff alleged a defect in the bridge consisting of a hole and averred that the defect caused the fall of the horse. There was no direct testimony that the falling of the horse was caused by the defect in the bridge. The plaintiff was the only witness. She testified, in substance, that after the horse was on the bridge he pitched forward and that was the last she knew. The Court said on page 337 of 84 Me., at page 877 of 24a:

'And where different inferences are deducible from the same facts which appear, and are equally consistent with those facts, it cannot be said that the plaintiff has maintained the proposition upon which alone she would be entitled to recover. * * *

'* * * How did this accident happen? No reason is assigned other than from inference. Nobody testifies that the horse went into the hole. The driver is not produced to testify to his manner of driving. For aught that appears, he may not have controlled the horse at all, or tried to do so. We do not know what he did or whether he did anything, or whether h...