Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-10-27
Knox County Rescript.
Herbert BoWdcn vs.. Samuel Derby.
StlOut j.

fefbeft boWdcn VS.. samuel Derby.
Stout. j.
The city # ROckland was repairing
Il retaining wall on the side of "A street
near a deep excavation. The plaintiff
Was ut work upon the wall at the bot
tom of the excavation. Upon the ad-
joining bank Il derrick was erected to
be used for the handling of stone for
the wall. The boom of the derrick fell
into the excavation and upon the
plaintiff and injured him. The plaintiff
had Il verdict. which the defendant
moves - have set aside as against law
and q idence.
The defendant was street commits
sioner. and III that capacity had charge
Of the erection Of the wall. He en-
ployed the laborers. who were paid by
the city. In all this. he acted as a
public officer. and was responsible only
for reasonable care in the selection of
men and materials for the service. Be
yond this ne was under no liability,
except for his own acts.
The defendant furnished the der
rick as a complete appliance to be used
in doing the work. The plaintiff had
nothing to do with the selection or
putting up of the derrick AS said by
the Court. 81 Me. $50: He had right
to rely that it was all right-that it
was not subject to such defects as
could be discovered by the exercise of
reasonable care OH the part of the
defendant. The defendant may have
been under no obligation as road COM
missioner. to furnish the derrick, but
having done Sc, he assumed the obi
CATION towards those who We're to use
it. of seeing that it was reasonably
safe and suitable. and so maintained"
The heel of the boom rested against
the upright mast. upon a chock of
wood attached to the mast about eight
inches wide. Upon the sides cleats
We're nailed to the mast. to prevent
lateral slipping. but it was not other
wise attached or fastened to the mast,
and it had no appliance for such at
tachment. The outer end Of the
boom was raised five or six feet higher
than its heel by a guy or top lift, run
ming from it to the top Of the mast.
From some unexplained reason, while
operating the derrick, the top lift
either slipped or became detached from
its fastenings. allowing the outer end
of the boom rapidly to fall to point
lower than the heel. and the heel came
out of its resting place against the
mast and fell upon the plaintiff.
Plaintiff claimed that the boom
should have been made fast to the
mast and that it was defective for
lack of such fastening. The juryssus
tanned this contention. and found the
derrick defective in that particular.
and that this defect was the proxi
mate cause Of the injury. We do not
disagree with this finding. We think
it is sustained by the evidence. Y
But it is insisted that this defect
was not the proXimate cause of the
injurv-that the slipping of the top lift
should be regarded as the proximate
cause. We do not think so. AS said |
ny the Court in Becker VS.. Freeman, |
20 n. II. APO: THE principle is clearly |
established that negligence may be
regarded as the prOximate- cause Of
an INJURY. of which it may not be the |
sole and immediate cause. If the de- |
PENDANTS negligent. inconsderate and |
wanton. though not malicious. act |
concurred with any other thing, per-
son or event other than the plaintiffs |
own fault. to produce the injury, so
that it clearly appears that but for
such negligent. wrongful act the in
jury would not have happened, and
both circumstances are clearly con-
nected with the injury in the order of
events. the defendant is responsible
even though his negligent. wrongful
act may not have been the nearest
cause in the chain of events or the Or
der of time IF the boom had been
PROPERLY secured to the mast, the ac-
accident would not have happened.
Motion overruled.
Received Oct 18th. 1904.