140 Me. 166 | Me. | 1943
This action on the case to recover damages caused by the alleged negligence of the defendant was heard by the presiding justice with the right of exceptions reserved, lie ordered the entry of judgment for the plaintiff in the sum of $1,828.15 and the case is before us on the defendant’s exceptions. The claim is that there is not sufficient evidence to support the finding.
The plaintiff operated a grocery store in the City of Water-ville. The defendant supplied water service to the plaintiff. To measure the water used, the defendant on November 22,1938, approximately two years and a half prior to the accident here in question, installed a meter on the defendant’s premises. The meter was made by the Hersey Manufacturing Company, a concern of the highest standing, and had been rebuilt by the manufacturer just prior to the installation. It was supposed to pass the same tests as to pressure as a new meter. It had what is known as a frost proof bottom which was designed to let go when the pressure within reached a certain point. The purpose was to prevent damage to the working parts of the mechanism, if the pressure within became too great because of freezing. It is conceded that the normal water pressure maintained by the defendant throughout the area where the plaintiff’s store was located was slightly in excess of one hundred pounds to the square inch, and the evidence establishes that the meter in question was designed to withstand a pressure of at least six hundred pounds before the bottom would let go. About midnight on Saturday, May 17, 1941, the plaintiff’s store manager inspected the cellar of the store and read the meter which was located there. Everything seemed to be in a satisfactory condition. The next afternoon, Sunday, between two and four o’clock he entered the store and found a large amount of water in the cellar, which had done extensive damage to the stock of merchandise. Investigation showed that the bottom of the meter had come off. Certainly no frost caused the break; and
There is a suggestion by the plaintiff that the defendant should have known that shut-offs of this nature were commonly in use and should not have installed a meter which would, let go on building up such a pressure. But there is nothing whatever in the evidence to show any negligence on the part of the defendant in failing to anticipate such an eventuality; and in any event it is only conjecture that it was excess pressure due to hammer which caused the accident. The plaintiff, therefore, really rests its claimed right of recovery on the doctrine of res ipsa loquiter. The plaintiff argues that the following statement of the doctrine from Chicago Union Traction Co.v. Giese, 229 Ill., 260,82 N. E., 232, cited with approval in the recent case of Nichols v. Kobritz, 139 Me., 258,29 A. (2d), 161, warrants a recovery in this case:
“When a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper card, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from the want of proper care.”
The rule has been applied in this jurisdiction to cases where automobiles suddenly and without explanation have left the highway. Chaisson v. Williams, 130 Me., 341, 156 A., 154;
In the instant case the meter was of an approved design and bought from a reputable manufacturer. No amount of inspection by the defendant would have shown any defect, for it was impossible to find any flaw even after the appliance had been dismantled. Any inference of negligence of the defendant which may have arisen because of the mere happening of the accident has been effectively rebutted. To hold otherwise would be to make the defendant an insurer regardless of negligence. The case is quite different from Leighton v. Dean, 117 Me., 40, 102 A., 565, L. R. A., 1918 B, 922. In that case to use the language of the court page 44: “The very circumstances of this
There being no evidence to warrant the inference of negligence, the ruling below was legal error.
Exceptions sustained.