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The decision as printed

Supreme Judicial Court · from CourtListener · released Dec 29, 1914 · 3 pages · 164 KB
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KELLY V. WINTHROP. 471 Mass.] 
Mary Kelly Winthrop. J. vs. of Inhabitants
10, 11, 1914. 29, 1914. Suffolk. November December
J., Rugg, Braley, Courcy, Crosby, C. De & Present: JJ.
Municipal Corporations. Negligence, Waterworks. Proximate cause.
standpipe, operated only A which a town maintains that was built and is not for
protection against equalize pressure general fire but also “to the in for the do-
by supplied enterprise mestic service” the a town as commercial for its own
benefit, corporate required operation is in the maintenance and of the stand-
pipe injury adjoining private property. to use reasonable care to avoid to
operates standpipe part If a town maintains and a in for the distribution of
liability corporate enterprise, injury water as a adjoining commercial its for to
by private property negligence operation of reason in the maintenance or of
by standpipe the not the standpipe is affected fact that the used in water the is
metropolitan system. obtained from the water
against damage plaintiff’s property In by an action a town for to the caused the
operated standpipe by part the overflow of a maintained and defendant in for
corporate enterprise, appeared the of a distribution water as commercial it
damage standpipe that before the time of the no overflow the from had oc-
curred, question clogging regulating that in was due the overflow to the of the
system metropolitan of the water valve conduit of the from which the defend-
standpipe, the ant obtained the water that was used in that the defendant had
valve, knowledge foreign no control this that it had that if over but substances
floating passed automatically in into it the water the valve would cease to work
leak, overflow, causing standpipe pipe and would the to and that if an overflow
feasible, provided, discharged had been as was the water would have been on the
plaintiff’s property damaged. land defendant’s own and the would not have been
Held, jury finding reasonably that the the were warranted in that defendant
occurred, ought guarded against anticipated to have and the condition that
negligence consequences and that its failure to of do so was for the which it
plaintiff. was liable to the
Tort the the against Winthrop damage town of for to plain-
on property by tiff’s Faun Bar caused an from Avenue overflow
by a standpipe maintained the defendant on the of Cottage top
in 16, Hill that January town. Writ dated 1913.
the Sanderson, In Court the was before Superior case tried J.
The facts which could have been found the are upon evidence
in stated the At the of the evidence the defendant opinion. close
asked the rulings, among to make certain which were the judge
following:

KELLY V. 472 WINTHROP. [219
“1. all the evidence the is not entitled re- Upon plaintiff to
cover.
no “2. There is sufficient evidence in the case to warrant a
any the defendant or one for acts finding that whose and omis-
and, therefore, responsible, negligent, sions it is was a verdict
must for be returned the defendant.”
in “8. there was the maintenance or any negligence opera- If
line, of automatic at the it the tion the town was not regulators
defendant, of the but that of the negligence metropolitan water
sewerage and board.
There is no finding “9. evidence to warrant a that the de-
to of the ought fendant have foreseen the automatic possibility
regulator sewerage .failing of the water and board metropolitan
work and such danger.” to to have properly guarded against
The refused these and other rulings requested to make judge
the and the to the re- by jury, defendant submitted case who
$250. for in of The de- turned a verdict the the sum plaintiff
fendant alleged exceptions.
Orcutt, H. for W. the defendant.
for Murray, W. A. the plaintiff. 
Braley, defendant’s en- testimony J. The on the of the jury
find, the damaged that whose overflow gineer standpipe could the
fire, had not for from only protection been built plaintiff’s property
the service.” pressure general the in for domestic but “to equalize
the maintained domestic defendant that the finding, A further
its been warranted from the water would have service and sold
testimony of the and the the interrogatories plaintiff.* answers to
the main of was conduits is that source supply It material the not
pipes the service system with which of the water metropolitan
the of provisions under been connected owned the town had by
1898, 392, and 488, 3, of c. 1895, amended St. by the St. c. as of §
capac- in a dual even if used 1899, The standpipe, St. of c. 349.
storage and the water on system, of the water ity, part formed
defendant, management sole subject to its of the was the property
cor- for its own voluntarily undertaken having and It control.
re- defendant was the enterprise, a commercial benefit porate
the and of use in the maintenance reasonable care to use quired 
* and bought the defendant from she water “that plaintiff-testified The
taxes.” payment than real estate by other same paid for the

V. KELLY WINTHKOP. 473 Mass.]
contiguous to the injury estate of to avoid the plain- standpipe
151 Mass. 174. Westborough, Boston, Dickinson v. tiff. Bates v.
599, Farrigan and cases cited. 595, Pevear, v. 188 Mass. 193
32, R. L. c. 38-48. 147, 150, See 151. §§ Mass.
expert, whose qualifications the plaintiff’s The evidence of were
determine, show, is sufficient to to if judge for the that presiding
the water would had been have been provided an overflow pipe
land, and jury own the could the defendant’s have on discharged
and that if it had feasible been used that this device was found
not have been damaged. would Carroll plaintiff’s property the
Glass 200 Mass. 527. v. Hazen Con- Railway, Elevated v. Boston
211 Mass. 99. Co. fectionery
had no overflow occurred cannot as fact that previously The
Its freedom from liability the defendant. of law exonerate matter
of duty exercising of its due care in discharge the upon depended
for the uses for which it standpipe of the was the construction
the system after water supervision as in proper as well designed
174, Westborough, Bates v. 151 Mass. in operation. put been had
Brookline, true, It is Mass. 324. doubtless as 126 Hand v. 182.
that, contends, if the valve over regulation which defendant the
the clogged, not become water level would had had no control it
the of the But top standpipe. feet below it remained ten have
in floating if substances the water foreign that unquestioned was
automatically to and it cease work the valve would into passed
The were leak, standpipe. jury accordingly the flooding would
reasonably ought the defendant to that finding in warranted
Cormo this condition. v. against and anticipated guarded have
Works, 366, It could not under Mass. 369. 205 Bridge Boston
using without at least body this of water store the circumstances
man prevent and careful to ordinarily prudent an the care of
the plaintiff. land of to the escape its
by not they in far as were covered so requests The defendant’s
and, no error of law given, been not have coiild the instructions
be overruled. must exceptions the appearing,
ordered. So