Burke v. Providence Gas Co.

2 R.I. Dec. 148

• Court: Superior Court of Rhode Island
• Decided: March 23, 1926
• Docket: No.61901
• Status: Published

Opinion

CAPOTOSTO, J.

The plaintiff claims to have been injured by the tailing of a wall built of, cement flocks. His contention is that the wall was pushed over- by a laborer of blip defendant company negligently leaning against the wall while excavating a trench for some gas connections.

The jury awarded the plaintiff damages in the sum of $600.

The defendant maintains that it is not liable and that, therefore, the verdict is unjust,

The facts of this case, as shown in the evidence, present an unusual picture strongly bordering- upon the humorous. The plaintiff makes no-claim that the digging of the trench, weakened or undermined the fpun-dation of the wall. His entire complaint is that a laborer, who was engaged in digging the trench, touched or leaned against the wall while working in the trench and (that, as a result of such leaning against or touching of the wall by the defendant’s servant, the wall fell. The same wall had fallen the day before, due, according to the building inspector of the city of Providence, to faulty construction and insufficient foundation. The wall was rebuilt between that time when the defendant company, on the following day, began to make the necessary excavation for the gas connection desired.

The wall under construction began at Eddy Street in the city of Providence and ran back 16 feet. It was between 7 to 8 feet high and some 8 to 10 inches thick. The trench which the defendant’s servant was digging also began at Eddy Street, ran parallel with and some 10 to 12 inches from the wall and was about 4 feet long, 2 feet wide'and 2 feet deep. The laborer, one Giuseppe Marsella, was a welLbuilt, stocky fellow, not much over 5 feet'tall. The dirt which ■vyas excavated from the trench was thrown to the side of the-trench ay^y from the wall, so that nq extra pressure--against the wall was exerted, by the material, removed. T-he wall, fpll for its entire distance away from, the trench and towards the place where the plaintiff was working.

For plaintiff: Greenough, Easton & Cross. For defendant: Swan, Keeney & Smith.

To sustain the plaintiff’s claim one must believe, therefore, that -a laborer a little over 5 feet tall, working in a trench some 4 feet lon¡g, 2 feet deep and about a foot away from the wall accomplished the unusual feat of pushing over for its entire length a cement block wall 16 feet long and some 8 feet high by negligently touching the wall with his well developed shoulder A man. of such extraordinary ability cbuld not for long conceal his prowess And would soon be amusing the public at a fabulous salary when compared with that of the. ordinary trench digger.

.The plaintiff’s claim is supported neither by the evidence nor by common sense. While the plaintiff was to' sbme extent injured,, his claim for redress, if any he ’ have, is against sbmé one other than this defendant.

Motion for new trial granted.