Mooney v. Edison Electric Illuminating Light Co.

• Decision Date: 18 May 1904
• Citation: 70 N.E. 933,185 Mass. 547
• Parties: MOONEY v. EDISON ELECTRIC ILLUMINATING LIGHT CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 547

70 N.E. 933

MOONEY v. EDISON ELECTRIC ILLUMINATING LIGHT CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1904

COUNSEL

Thos. F. Meehan, for appellant.

Saml. M. Child, for respondents.

OPINION

HAMMOND, J.

The plaintiff seeks to hold the two private corporations upon the ground that by their negligence the highway became charged with electricity, and the city of Boston upon the ground that it negligently suffered the highway to remain thus charged. As against the first two the liability rests solely upon the common law; as against the city, solely upon the statute. The private corporations had nothing to do with the negligence charged against the city, and the city had nothing to do with the negligence charged against the private corporations. The liability of the city depends upon statutory conditions, and is limited in amount, while the liability of the other defendants depends upon conditions entirely different, and is measured only by the amount of damages suffered by the plaintiff. As between the defendants, the liability of the private corporations is primary, that of the city secondary; and the city, in case of a recovery against it, could maintain an action against these other defendants to recover what it paid. Boston v. Coon, 175 Mass. 283, 56 N.E. 287, and cases cited. From these considerations it is plain that neither in fact nor in legal intendment are these defendants joint tort feasors. They therefore cannot be held as such, and the declaration is bad. For cases illustrative of the principle involved, see Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745; Mulchey v. Methodist Religious Society, 125 Mass. 487; Ridley v. Knox, 138 Mass. 83; Dutton v. Lansdowne Borough, 198 Pa. 563, 48 A. 494, 53 L. R. A. 469, 82 Am. St. Rep. 814.

Demurrer sustained.