Tibbetts v. Knox & Lincoln R. R.

Yirgin, J. Action founded on R. S., c. 51, § 22, to recover for injuries caused to the plaintiff’s land and buildings adjoining the defendant’s line of railway, by the blasting of rocks during the construction of the road-bed, in the season of 1870. On March 20, 1869, one Hogan contracted with the defendants to construct and finish, in a substantial and workmanlike manner, the first five sections of their railroad. Among other numerous stipulations common to such instruments, not material to the determination of this case, were the following: “the work to be finished as described in the following specifications, and agreeably to the directions from time to time, of the engineer, on or before May 1, 1870, * * all damages from blasting to be paid by the contractor. * * And in case any damages shall occur to such premises [of landowner] through the wilfullness or carelessness of the contractor or his employees, and remain for thirty days unsettled by the contractor, the company shall have full right to retain in its hands out of moneys that may be due the contractor such sums as the chief engineer and committee of construction may think sufficient to pay said damages.” On April 14, following, O’Donnell, Hinds and Morgan entered into a contract with Hogan to construct section five — this contract containing the same stipulations as the former. •The parties submitted this case to the presiding judge, reserving the right to except in matters of law. The presiding judge found as matters of fact — That the work was being performed by the sub-contractors at the time of the injury complained of; and that the damage Was occasioned by the carelessness of the subcontractors. Thereupon he ruled, as matter of law, that the railroad corporation was not responsible; and ordered judgment for the defendants. This ruling is in strict accordance with the law laid down by this court in Eaton v. E. & N. A. Railway Co., 59 Maine, 520; and the law there declared is the settled law of England, as well as of this country. [439] The stipulations relating to retaining money to pay damages are immaterial in the determination of this action. Exceptions overruled. Appleton, O. J., Cutting, Walton, Dickerson and Barrows, JJ., concurred.