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