Read v. E. Providence Fire Dist

• Decision Date: 16 June 1898
• Citation: 20 R.I. 574,40 A. 760
• Parties: READ et al. v. EAST PROVIDENCE FIRE DIST.
• Court: Rhode Island Supreme Court

40 A. 760

20 R.I. 574

READ et al.

v. EAST PROVIDENCE FIRE DIST.

Supreme Court of Rhode Island.

June 16, 1898.

Master and Servant — Independent Contractors—Acceptance op Work.

A standpipe was constructed by an independent contractor. Before its formal acceptance by the company owning it, but after it was practically completed, and had been filled with water, which was being used in supplying customers, it collapsed. Held, that the company, having assumed practical control by appropriating it to the use for which it was erected, was liable to third persons injured by it to the same extent as if there had been a formal acceptance.

Trespass on the case by Harriet E. Read and others against the East Providence Fire District There was a nonsuit granted, and plaintiffs petition for a new trial. Granted.

Lycurgus Sayles and James A. Williams, for plaintiffs.

C. Frank Parkhurst, for defendant.

TILLINGHAST, J. This is an action of trespass on the case for negligence, and is brought to recover damages alleged to have been suffered by the plaintiffs by reason of the collapse of a certain large tank or standpipe which had been erected on the defendant's land adjacent to the plaintiffs' land. The declaration alleges, among other things, that the defendant corporation was engaged in the business of providing water for general purposes to certain of the inhabitants of East Providence, and for that purpose erected and maintained a certain large iron tank or standpipe, and kept the same filled with water, and that the said standpipe was so negligently constructed in certain specified particulars, and also was so negligently managed in certain other specified particulars, that it collapsed, whereby the plaintiffs' land and buildings were flooded and greatly damaged. The declaration further sets out that prior to the time of the collapse of said standpipe, to wit, in September, 1893, it was damaged by the wind, and that its weakness and unsoundness were shown by its bending inward, and by its leaking, which facts were well known to the defendant. The defendant pleaded specially that the standpipe, at the time of its fall, was in process of construction by an independent contractor; that it had not been completed, and had not been accepted by the defendant, and was not in its control, but was in the exclusive management, care, and control of an independent contractor, to wit, the Cunningham Iron Works Company. Defendant also pleaded the general issue.

At the close of the plaintiffs' testimony the justice presiding at the trial granted the defendant's motion for a nonsuit, and the case is now before us on a petition for new trial for alleged error of the court in so doing.

The ground on which the nonsuit was granted, as we gather from the record, was that, the standpipe having been constructed by an independent contractor, and not having been accepted by the defendant at the time of the accident, the action could not be maintained. The testimony introduced by the plaintiffs, however, shows that while the standpipe had not been formally accepted by the defendant at the time of the accident, yet that it was practically completed, and was being used more or less by the defendant in supplying water to its customers. The testimony also shows that a gale of wind, which occurred in September, 1896, had caused a large dent in the standpipe, causing it to leak badly, which fact was well known to the defendant, and that at the time of the accident the contractor was endeavoring to remedy this defect so as to make the work acceptable to Mr. Gray, the engineer in charge of the work. Joseph J. Luther, the superintendent of the fire district, was asked if there was a connection between the standpipe and the pumping station, and also if there were pipes running to different portions of the town. His answer was: "Yes, sir; of course, to give even pressure. At first we pumped through the main, but when the standpipe was finished we pumped the water into it Before that we had an accident, and the pipe received a black eye, and a big dent, and got shook up considerably, and after that we filled it up, and pushed the dents out of the pipe. That was in September, 1893. * * * Q. Did the pipe leak after that? A. It did. The water came out in a narrow stream. * * * Q. The roof, as I understand you, was placed there after this dent? A. Yes, sir. After we filled it up, while they were repairing that dent, we would use it spasmodically....