Radigan v. W. J. Halloran Co.

• Citation: 97 R.I. 122,196 A.2d 160
• Parties: Hazel Louise RADIGAN, Adm'x, v. W. J. HALLORAN CO. (two cases). Hazel Louise RADIGAN, Adm'x, v. HALLORAN CONSTRUCTION CO. OF RHODE ISLAND (two cases). Ex. 10358 to Ex. 10361.
• Decision Date: 19 December 1963
• Court: United States State Supreme Court of Rhode Island

Page 160

196 A.2d 160

97 R.I. 122

Hazel Louise RADIGAN, Adm'x, v. W. J. HALLORAN CO. (two cases).

Hazel Louise RADIGAN, Adm'x, v. HALLORAN CONSTRUCTION CO. OF RHODE ISLAND (two cases).

Ex. 10358 to Ex. 10361.

Supreme Court of Rhode Island.

Dec. 19, 1963.

Louis M. Macktaz, Woonsocket, for plaintiff.

Higgins & Slattery, Eugene V. Higgins, Providence, for defendants.

CONDON, Chief Justice.

These actions of trespass on the case for negligence are here on the plaintiff's bill of exceptions to the ruling of a justice of the superior court sustaining the defendant's demurrer to the declaration in each case.

Each declaration is in seven counts. With respect to the issue raised by each demurrer the declarations are substantially identical. For this reason we shall consider the exceptions as though only one case were before us. Our decision of course will apply to all of the cases.

The facts out of which plaintiff's cause of action arose are alleged as follows. On April 2, 1959 defendant Halloran Construction Co. of Rhode Island was constructing a bridge on Hamlet avenue in the city of Woonsocket. The defendant W. J. Halloran Co., a subcontractor on the project, was engaged in hoisting, transferring and unloading concrete from trucks to the bridge abutments by means of a power crane. The crane was equipped with an extended boom 100 to 110 feet in length to which a steel bucket was attached by cables. An uninsulated high tension power line carrying 110,000 to 115,000 volts crossed directly over the westerly end of the bridge about 70 to 75 feet above the ground.

On the day in question plaintiff's decedent was employed as a fireman by the city of Woonsocket and was on the third floor of a fire station in the vicinity of the bridge project when the boom came into such proximity to the high tension power line as to cause a current of electricity to travel underground along an unused electrical conduit, where it burned a hole in a 12-inch gas main causing a gas leak. The leaking gas penetrated to the third floor of the fire station where it caused an explosion, resulting in the death of plaintiff's decedent.

The declaration alleges that defendant knew or should have known of the existence of the uninsulated power lines and that direct or near contact of the crane therewith would cause electricity of high voltage to escape. It further alleges that defendant had a duty to exercise due care in operating the crane so that such operation would not cause electricity to escape and injure the decedent, but that notwithstanding such duty it so carelessly and negligently operated the crane as to cause electricity to escape and produce the explosion which resulted in the death of the decedent. In substance these are the allegations of the first four counts.

Counts Nos. 5 and 6 allege breaches of defendant's duty in operating its crane in proximity to the overhead high voltage lines to observe regulation No. 12 of the Rhode Island Industrial Safety Code, subsections 5.1 and 5.2, promulgated by the Rhode Island Industrial Safety Code Authority pursuant to G.L.1956, §§ 28-19-4 to 28-19-8 inclusive.

Count No. 7 alleges that defendant in operating its crane in the manner it did created and maintained a nuisance which resulted in the death of plaintiff's decedent. The count further alleges that defendant knew or should have known that the existence of such conditions surrounding its operation of the crane created a danger and menace to persons lawfully in the vicinity amounting to a nuisance.

The defendant demurred to the first four counts on the following grounds: 1. No proper legal duty is alleged. 2. No actionable negligence is alleged. 3. The alleged negligence of defendant's agent or servant was not a proximate cause of the injury to plaintiff's decedent. 4. Such injury was not a foreseeable result of the alleged negligence of defendant's servant or agent. 5. That it was not the natural and probable consequence of the alleged negligence. 6. The declaration is otherwise vague, uncertain and indefinite.

The demurrer to the fifth and sixth counts is based substantially on the same grounds and in addition the following, namely, that each of such counts fails to state a cause of action in that G.L.1956, § 28-19-4 et seq., upon which the count is based is penal and does not give rise to a civil action.

The demurrer to the seventh count also is grounded in part on the general allegations of the demurrer to the first four counts but also more particularly on the ground that the facts alleged in the seventh count do not, as a matter of law, constitute a nuisance.

In none of the counts is it alleged that defendant knew, or in the exercise of due care should have known, that there was a 12-inch gas main and a 1 1/4-inch conduit of unknown origin in the ground; that a one-inch hole was burned in the main permitting gas to escape through cracks in the manhole; or that the gas was capable of penetrating the fire station and, in conjunction with the unleashed electric voltage, causing an explosion in the fire alarm headquarters on the third floor of the station where plaintiff's decedent was working.

In the absence of such allegations, the alleged negligence of defendant consisted solely in so operating its crane as to permit electricity to escape from the power line. If, as a direct result of such negligence, plaintiff's decedent was injured, a good cause of action would have arisen. This was substantially the situation in Agostini v. W. J. Halloran Co., 82 R.I. 466, 111 A.2d 537, Rott v....