Leavitt v. Bangor & Aroostook Railroad

Haskell, J. This is an action of case, by the owner of a lumber mill, against a railroad company for burning the same by fire communicated from the premises of the company. The first count charges the defendant with negligently maintaining a cooking-car, in which a fire was kept, on its premises so near to the plaintiff’s mill as to endanger its safety, whereby the same was burned. In short, with maintaining a nuisance from which danger ensued. The second count charges the defendant with negligence in the management of its fire so kept in the cooking-car, by reason whereof the plaintiff’s mill was burned. The jury found specially that plaintiff’s mill was destroyed by fire communicated from the cooking-car, and that defendant was guilty of negligence in locating the same; whereupon they were instructed to assess damages for the plaintiff, which they did. The case comes up on motion to set aside the verdict as against law. The undisputed facts of the case material to the consideration here are, that the defendant contracted to have its wood, along the line of its railroad, sawed in lengths suitable for fuel at a stipulated price per cord; that the contractor owned and used for the purpose [517] three railroad cars; one for a living-car for the men, one for a tool-ear and one for a cooking-car in which a fire was kept for the purpose. To enable the contractor to conveniently do his work, the defendant placed these cars on one of its spur-tracks, some seventy-five or one hundred feet from plaintiff’s mill; and the question is, did this act make the defendant liable for the burning of the same from fire maintained by the contractor in the cooking-car ? It is settled, in this state, that an employer is not liable for the negligent acts of a contractor, or his servants, where the contractor “carries on an independent business, and in doing his work does not act under the direction and control of his employer, but determines for himself in what manner it shall be carried on;” and that such employment “ does not create the relation of master and servant;” a fortiori, the employer cannot be responsible for acts of the contractor, or his servants, that are not negligent. McCarthy v. Second Parish, 71 Maine, 318. In that case the authorities are examined and considered, and need not be reviewed here. The facts of this case come within the doctrine of that case. The contractor here was carrying on an independent business, and was in no sense the servant of the defendant company. But it is argued that the mischief of which the plaintiff complains was not the negligent act of the contractor or his servants, but the direct result from using, carefully if you please, an appliance located by defendant; that the próxima causa was the location of the car, the use of which naturally would and did cause the damage. But the act of locating the car, and of using it with fire, must be distinguished. The former was the act of the defendant. The latter, of the contractor. The car itself was harmless, and its location, when unused, threatened no injury to plaintiff. The use might create mischief. The thing unused was harmless. The doctrine of Burbank v. Bethel Steam Mill, 75 Maine, 373, applies. There it was contended that the location of a steam engine, for propelling a mill in violation of statute regulations made a nuisance of it per se, whereby the plaintiff might recover [518] damages for the burning of his buildings from fire used to make steam for the engine; but the court held that he could not, that the engine itself where located did not become a nuisance per se, but that its negligent use might create liability. So in this case. Here, cars themselves were not objectionable. It was the use that might make them so, and the use was the act of the owner, not of the defendant. Fire in the cooking-car might be dangerous at some times and unobjectionable at others. If the wind be strong and blowing towards inflammable property, it might be gross carelessness, with the short funnel as a chimney, to burn shavings, shingles and other light and highly inflammable fuel that sends out with the draft, sparks, coals, and pieces of wood on fire, while it might be prudent to have a fire of hard coal that would not emit matter in the process of combustion. In such case everything would depend upon conditions. The height and size of the chimney, the strength of the draft, the kind of fuel, the weather, wind and care given to the fire. These conditions are all elements of the use, and the use is the creature of the tenant, not of the land-owner, who does not control the use. True, there might be cases where the land-owner would be liable if the use was contrived by him for the purpose of mischief, with intent of avoiding liability; but there is no element of that sort here. The car was located without intent to injure. The liability for its imprudent use then rested upon its owner, who was tenant. There is no principle of law that can be invoked to charge the defendant. It did not create or maintain a nuisance, nor a condition that directly caused the mischief. That was perhaps caused from the misuse, by another, of the conditions created by defendant, for whose acts defendant is in no way responsible. Lee v. McLaughlin, 86 Maine, 410, sustains the doctrine of this case. There, the owner of a building in possession of a tenant was held not liable for injury caused by a snow slide into the street. The building was not a nuisance per se. The accumulated snow upon the roof might make it so, and that was the fault of the tenant. See also, Eaton v. Railway, 59 Maine, 520; Tibbetts v. Railway, 62 Maine, 487. [519] Veazie v. Railroad, 49 Maine, 119, does not conflict with this doctrine. There, a highway was made dangerous by the wort of contractors, and the employer was held liable. Any obstruction of a highway is a nuisance per se. Corthell v. Holmes, 88 Maine, 376; Penley v. Auburn, 85 Maine, 278. No private person or corporation has a right to interfere with a highway, and can only do so by authority from the legislature ; and then, as the authority is personal, the act, by whomsoever done, remains personal. The act of a contractor, being unauthorized except from the legal privilege of his employer, logically becomes the act of the latter, permitted by law in derogation of the public right. That is the doctrine of Veazie v. Railroad, supra, and is not applicable here. Nor is Southern Ohio Railroad Co. v. Morey, 47 Ohio St. 207, where the plaintiff, by contractors, dug a ditch across a street, and left the same unguarded, into which a traveler fell and was injured. Nor is Circleville v. Neuding, 41 Ohio St. 465, where the city itself was held liable to a traveler for the negligence of its contractor in sinking a reservoir in a street. The opinion cites numerous cases holding the doctrine of Veazie v. Railroad, supra. The doctrine of Norwalk Gaslight Co. v. Norwalk, 63 Conn. 528, is well stated in the opinion. “It is a sound rule of law as of morals, that when, in the natural course of things, injurious consequences will arise to another from an act which I cause to be done, unless means are adopted by which such consequences may be prevented, I am bound, so far as it lies in my power, to see to the doing of that which is necessary to prevent the mischief. Failure to do so would be culpable negligence on my. part.” Bower v. Peate L. R. 1 Q. B. Div. 321. Certainly, there the blasting by dynamite in digging sewers caused the injury complained of to plaintiff’s gas pipes. The blasting was contracted to be done, and was done, as the very act of the employer, and as the court says, was “intrinsically dangerous.” The act complained of in the case- at bar was locating a car upon the employer’s land, an act not dangerous to any one. Its use might, or might not be. A dangerous use was not contracted for. Had it been, it might have come within the doctrine of the above case, The same [520] doctrine was applied in Gorham v. Gross, 125 Mass. 232. Defendant contracted to have a retaining wall built against his neighbor, and it fell, causing damage to the neighbor. Of course defendant was liable. The same doctrine was applied in Sturges v. Educational Society, 130 Mass. 414. Woodman v. Railroad, 149 Mass. 335, cites with approval Veazie v. Railroad, supra, and confirms the same doctrine. Conlon v. Railroad, 135 Mass. 195, applies the same principle. Ellis v. Sheffield, 2 E. & B. 767, is cited. It charmingly states the doctrine of the above case : “If the contractor does the thing which he is employed to do, the employer is responsible for that thing, as if he did it himself.” These are all the authorities cited by plaintiff that require notice. Among the many cases cited by the defendant, the principle governing the present case was applied in Rich v. Basterfield, 4 C. B. 783. There, the owner of land built a chimney upon it, and leased the land. The tenant lighted a fire from the smoke of which the plaintiff was injured. There, as here, it was contended that the owner, having provided the appliances for a fire, impliedly authorized the lighting of the fire. But it was held otherwise, and that the damage resulted from the act of the tenant, and that the owner was not liable, although he enabled the tenant to make fires if he pleased. The independent act of a third person that intervenes between the wrong complained of and the injury sustained is a good test of remoteness that forbids recovery. Cuff v. Railroad, 35 N. J. Law, and cases cited. Where the fire is negligently set by the owner, or his servant, the liability attaches. Webb v. Railroad, 49 N. Y. 420. But if set by a contractor, it does not attach. Ferguson v. Hubbell, 97 N. Y. 507. Motion sustained.