Roch Lemieux v. City St. Albans

The plaintiff, a member of the Civilian Conservation Corps, was engaged on June 9, 1939, on work in a pit from which many trucks were drawing dirt. Most of the trucks were delivering to a C. C. C. project at St. Albans Bay. In addition to the so-called C. C. C. trucks there were two others one of which while backing ran over and injured the plaintiff. The plaintiff claimed that the driver of this truck was a servant of the defendant at the time and that the accident resulted from his negligence. There was a trial by jury resulting in a verdict and judgment for the plaintiff and the case is here on defendant's exceptions one of which is based on the refusal of the Court to grant its motion for a directed verdict. One ground for this motion was, in effect, that the defendant was using the truck and driver in question in the performance of a governmental function and consequently cannot be held liable on the ground of respondeat superior. We will first consider this question; for if decided in favor of the defendant all of its other exceptions become immaterial. From the evidence taken in the light most favorable to the plaintiff it clearly appears that the defendant was constructing a public playground for children on the property in which the pit was located. The truck at the time of the accident was engaged in drawing dirt from the pit so as to clean or level it and thus make it a suitable portion of the playground. The fill was being taken gratuitously by this truck to a place where the State was building a garage for national guard trucks.