Moose-A-Bec Quarries Co., Inc. v. E. Tractor & Equip. Co.
| Decision Date | 23 November 1942 |
| Parties | MOOSE-A-BEC QUARRIES CO., Inc. v. EASTERN TRACTOR & EQUIPMENT CO. |
| Court | Maine Supreme Court |
Exceptions from Superior Court, Washington County; Albert Beliveau, Presiding Justice.
Action by Moose-A-Bec Quarries Company, Incorporated, against Eastern Tractor and Equipment Company to recover for building and machinery located therein which was destroyed by fire allegedly caused by defendant's negligence. A judgment of nonsuit was entered. On plaintiff's bill of exceptions.
Exceptions overruled.
Before STURGIS, C. J, and THAXTER, HUDSON, MANSER, and MURCHIE. JJ.
Eaton & Peabody, of Bangor, and Oscar H. Dunbar, of Machias, and Thomas L. Marcaccio, of Providence, R. I., for plaintiff.
Clinton T. Goudy, of Portland, and Wesley E. Vose, of Eastport, for defendant.
This case is brought to the Court on exceptions by the plaintiff following a nonsuit ordered in the Trial Court. The bill of exceptions challenges not only the action of the Justice below in directing the nonsuit, but also his evidence ruling in admitting testimony offered to lay the foundation for a claim that the action was barred under the principle of res judicata. As we view the case, however, it is unnecessary to decide whether or not this established principle of law is applicable.
The plaintiff corporation, prior to December 24, 1940, operated a granite quarry on Hardwood Island within the limits of the Town of Addison. In the course of its operations, it maintained and operated a Diesel engine, housed in one of several closely-grouped buildings of wood and wood-frame and sheet-metal construction. Some days prior to the date aforesaid, trouble with the engine developed and the defendant was requested by telephone to provide a competent workman to overhaul the engine and to supply whatever parts were necessary to put it in good operating condition. On or about December 22, an employee of the defendant examined the engine and ordered the necessary parts, and thereafter, as deposed by plaintiff's representative and as alleged in the declaration, that employee of defendant was given possession and exclusive charge and control of the engine, of the building in which it was housed and of its contents, for the purpose of doing the work for which the defendant was employed. Simultaneously the plaintiff's principal officer instructed two of its regularly employed servants to act as helpers for defendant's employee, and so advised the latter.
It is the contention of the plaintiff, and it is supported in the evidence, that the prevailing temperature was such that repair of the engine was impossible in an unheated building, and on the record it would have been proper for a jury to determine that the defendant's undoubted employee and plaintiff's two loaned servants built and constructed an unusual, and perhaps an unsafe, heating appliance, to supply the necessary heat. On December 24th, while the three were eating their noon-day meal at a camp maintained by plaintiff a few minutes' walk from the scene, fire of undetermined origin started in the building where this appliance was located and destroyed the buildings, with the engine and other machinery and equipment located therein. The plaintiff seeks recovery of its money damage caused by the burning.
The record is entirely void of evidence indicating any act of negligence on the part of either defendant's employee or plaintiff's loaned servants other than the act, already referred to, of constructing an unsafe heating appliance (assuming its character to be such). The plaintiff bases its claim to recovery on the rule of res ipsa loquitur and the assumption that the fire originated either from the operation of the heating appliance itself, or from a blow-torch which the evidence discloses was used in connection with the repair work and was found after the fire in the pit beneath the engine. Either of these theories, however, presents nothing more than conjecture, and conjecture is not proof. Smith v. Lawrence et al, 98 Me. 92, 56 A. 455; McTaggartv. Maine Central Railroad Company, 100 Me. 223, 60 A. 1027; Edwards v. American Railway Express Company, 128 Me. 470, 148 A. 679; Loring v. Maine...
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...res ipsa loquitur did not apply where the accident was in part the fault of the plaintiff. See also, Moose-A-Bec Quarries Co. v. Eastern Tractor & Equipment Co., 139 Me. 249, 29 A.2d 167. In the instant case, plaintiff's possible breach of duty in her failure to exercise physical control ov......
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