Emery v. City of Waterville , 90 Me. 485 ( 1897 )

Emery, J.

The street commissioner of Waterville was requested to continue a gravel sidewalk along- Summer Street across Sherwin Street. This would make a gravel cross-walk across Sherwin Street at its junction with Summer Street. He, without personally going to the locality, directed a foreman to have some gravel hauled there and spread so as to make such a cross-walk and grade up the sidewalk on Summer Street. The foreman sent the gravel and sent a laborer in the employ of the city to spread it across Sherwin Street. The laborer undertook to do so, but did it in such a manner that the gravel, as left by him across Sherwin Street, became a defect in that street through which the plaintiff was injured.

The street commissioner had no other notice of that defect than what could properly be implied from the circumstances above stated. Was that an “actual notice” to him within the statute R. S., c. 18, § 80? The question is not one of general legal principles, but is purely one of statutory interpretation, since the plaintiff’s right of action, if any, is based solely on the statute.

The plaintiff contends that the street commissioner, through his subordinates, created or caused the defect and hence must be held either to have had actual notice of the defect, or else not to be entitled to more notice, under the doctrine of Holmes v. Paris, 75 Maine, 559; and Buck v. Biddeford, 82 Maine, 433. But did the street commissioner in this case create or cause the defect?

In Holmes v. Paris, supra, he clearly did. He “deposited and left heaps and piles of dirt in the traveled part of the highway.” He therefore knew they were there, — knew the actual condition of the road,— knew its defective condition, since “heaps and piles of dirt in the traveled part ” of a road in themselves constitute a defect. In Buck v. Biddeford, supra, the defect was an improperly, and visibly improperly, constructed iron grating over a cesspool in the street. The street commissioner directed that particular grating, or pattern of grating, to be placed in the street. He knew it was there, knew its actual condition, and hence knew the defective condition of the street.

In the case at bar, the street commissioner directed gravel to be hauled and spread to make a cross-walk at the place named. He undoubtedly therefore created a cross-walk there. He was also bound to assume that his orders were executed and hence bound to know that gravel had been hauled and spread there. But he was not bound to assume, or even apprehend, that the work he had commanded was left incomplete or imperfect. While the crosswalk was his, the imperfections were not his. A cross-walk in itself is not a defect. To know of a cross-walk is not to know of a defect. The defect was created not by the commissioner but by the laborer, without instructions or directions so to do. The commissioner, while cognizant of the existence of a cross-walk, was ignorant of any defect in the street, ignorant indeed of any conditions which might constitute a defect.

The case of Rich v. Rockland, 87 Maine 188, is illustrative of the distinction above made. The plaintiff urges that it does not apply, inasmuch as there the defect created, — the ridge of frozen snow, — was not part of a thing constructed or ordered to be constructed by the commissioner, but was outside of that work. Nevertheless the cases are similar in this, that the subordinate and not the commissioner created the delect.

A defect created in a street by a subordinate, even in the line of his general duty or employment, is not thereby created by his superior the street commissioner. The doctrines of principal and agent, or master and servant, in this respect are not applicable. Within the purview of this statute, the act of the subordinate is not the act of the commissioner unless specifically directed by him. The subordinate’s creation or knowledge of a defect is not notice to the commissioner of that defect. Welch v. Portland, 77 Maine, 384.

Exceptions sustained.