Leavitt v. Bangor & A. R. Co.

• Decision Date: 01 February 1897
• Citation: 89 Me. 509,36 A. 998
• Parties: LEAVITT v. BANGOR & A. R. CO.
• Court: Maine Supreme Court

36 A. 998

89 Me. 509

LEAVITT

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

Feb. 1, 1897.

(Official.)

Action by P. Ozias Leavitt against the Bangor & Aroostook Railroad Company. There was a verdict for plaintiff, and defendant moved for a new trial. Motion sustained.

P. H. Gillin and C. J. Hutchings, for plaintiff.

F. H. Appleton and H. R. Chaplin, for defendant.

HASKELL, J. This is an action of case, by the owner of a lumber mill, against a railroad company, for burning the same by fire communicated from the premises of the company.

The first count charges the defendant with negligently maintaining a cooking car, in which a fire was kept, on its premises, so near to the plaintiff's mill as to endanger its safety, whereby the same was burned; in short, with maintaining a nuisance, from which danger ensued.

The second count charges the defendant with negligence in the management of its fire so kept in the cooking car, by reason whereof the plaintiff's mill was burned.

The jury found specially that plaintiffs mill was destroyed by fire communicated from the cooking car, and that defendant was guilty of negligence in locating the same; whereupon they were instructed to assess damages for the plaintiff, which they did.

The case comes up on motion to set aside the verdict as against law.

The undisputed facts of the case material to the consideration here are that the defendant contracted to have its wood, along the line of its railroad, sawed in lengths suitable for fuel, at a stipulated price per cord; that the contractor owned and used for the purpose three railroad cars,—one for a living car for the men, one for a tool car, and one for a cooking car, in which a fire was kept for the purpose. To enable the contractor to conveniently do his work, the defendant placed these cars on one of its spur tracks, some 75 or 100 feet from plaintiff's mill; and the question is, did this act make the defendant liable for the burning of the same from tire maintained by the contractor in the cooking car?

It is settled in this state that an employer is not liable for the negligent acts of a contractor or his servant, where the contractor "carries on an independent business, and, in doing his work, does not act under the direction and control of his employer, but determines for himself in what manner it shall be carried on"; and that such employment "does not create the relation of master and servant." A fortiori, the employer cannot be responsible for acts of the contractor or his servants that are not negligent. McCarthy v. Second Parish, 71 Me. 318. In that case the authorities are examined and considered, and need not be reviewed here. The facts of this case come within the doctrine of that case. The contractor here was carrying on an independent business, and was in no sense the servant of the defendant company.

But it is argued that the mischief of which the plaintiff complains was not the negligent act of the contractor or his servants, but the direct result from using—carefully, if you please—an appliance located by defendant; that the proxima causa was the location of the car, the use of which naturally would, and did, cause the damage.

But the act of locating the car, and of using it with fire, must be distinguished. The former was the act of the defendant; the latter, of the contractor. The car itself was harmless, and its location, when unused, threatened no injury to plaintiff. The use might create mischief. The thing unused was harmless.

The doctrine of Burbank v. Steam Mill, 75 Me. 373, applies. There it was contended that the location of a steam engine for propelling a mill in violation of statute regulations made a nuisance of it per se, whereby the plaintiff might recover damages for the burning of his buildings from fire used to make steam for the engine; but the court held that he could not, that the engine itself where located did not become a nuisance per se, but that its negligent use might create liability.

So in this case. Here, cars themselves were not objectionable. It was the use that might make them so, and the use was the act of the owner, not of the defendant. Fire in the cooking car might be dangerous at some times, and unobjectionable at others. If the wind be strong, and blowing towards inflammable property, it might be gross carelessness, with the short funnel as a chimney, to burn shavings, shingles, and other light and highly inflammable fuel that sends out, with the draft, sparks, coals, and pieces of wood on fire, while it might be prudent to have a fire of hard coal that would not emit matter in the process of combustion. In such case everything would depend upon conditions. The height and size of the chimney, the strength of the draft, the kind of fuel, the weather, wind, and care given to the fire,—these conditions are all elements of the use, and the use is the creature of the tenant, not of the landowner, who does not control the use.

True, there might be cases where the landowner would be liable if the use was contrived by him for the purpose of mischief, with intent of avoiding liability; but there is no element of that sort here. The car was located without intent to injure. The liability for its imprudent use then rested upon its owner, who was tenant. There is no principle of law that can be invoked to charge the defendant. It did not create or maintain a nuisance, nor a condition that directly caused the mischief. That was perhaps caused from the misuse, by another, of the conditions created by defendant, for whose acts defendant is in no way responsible.

Lee v. McLaughlin, 86 Me. 410, 30 Atl. 65, sustains the doctrine of this case. There the owner of a building in possession of a tenant was held not...