296 Mass. 253 | Mass. | 1936
These are two independent actions of tort, tried to a jury upon the same statement of facts. Each plaintiff seeks to recover for property damage resulting from the alleged negligence of the defendant in failing properly to- construct or properly to maintain an old culvert, built by the defendant under Liberty Street, a public way in the defendant city, by reason of which negligence the plaintiffs suffered damage from water which entered upon their re
At the close of the evidence the defendant filed in each action a motion for a directed verdict for the reasons: "1. That upon all the evidence and the pleadings in the case the plaintiff is not entitled to recover.” “3. That there is not sufficient evidence in the case that the defendant was negligent. 4. That the superintendent of streets of the city of Marlborough in constructing the reinforced concrete culvert from Windsor Street, easterly and into Liberty Street, and connecting said reinforced concrete culvert with the nubble stone culvert under Liberty Street acted as a surveyor of highways of the city of Marlborough. 5. That the superintendent of streets of the city of Marlborough in constructing the twenty-four inch vitrified clay pipe drain extending from a point in front of the Windsor Hotel on Main Street in Marlborough in an easterly direction on Main Street to Windsor Street and then southerly on Windsor Street into the drain on Windsor Street acted as the surveyor of highways of the city of Marlborough. 6. That the surveyor of highways of the city of Marlborough is a public officer and the said city is not responsible for his acts. 7. That there is no evidence that any act done in the summer of 1927 in connection with the surface water drain on Windsor Street and Liberty Street was done by an agent of the city of Marlborough. 8. That there is no evidence that any act done in connection with the surface water drain on Windsor Street and Liberty Street, at any time prior to the summer of 1927, was done by an agent of the city of Marlborough.” These motions were denied and the defendant duly excepted.
In each action the defendant requested, and now relies upon, twenty-two rulings, which were similar to the grounds for the motions above quoted, numbered 1, 3, 4, 5 and 8, and were all based upon the theory that, either in fact or in law, the superintendent of streets, at and before the time the damage was sustained by the plaintiffs, was acting, not
The cases were given to the jury on counts 3 and 4 of the plaintiffs’ declarations, in each case the plaintiff waiving counts 1 and 2. The judge submitted two questions to the jury: (1) “Was the culvert under Liberty Street in the condition you find it was on November 3rd and 4th, 1927, negligently constructed or negligently maintained by the defendant?”; and (2) “Did the construction or the maintenance of the culvert under Liberty Street cause the water to collect in the Bond and Bradley cellars on November 3rd and 4th, 1927?” The jury answered “Yes” to each question and returned a verdict for the plaintiff in each action.
All the evidence material to the issues here presented is contained in the bill of exceptions, and is in substance as follows: The city of Marlborough was incorporated by St. 1890, c. 320, and now operates under that statute as modified by St. 1893, c. 322, and under G. L. c. 43, plan B, as modified by St. 1922, c. 275. Main Street runs east and west. Windsor Street lies on the southerly side of Main Street and runs in a southeasterly direction. Liberty Street begins at Main Street at a point easterly of Windsor Street, and extends southerly therefrom. The two streets converge at a point opposite the premises of one Lucier, as shown on a plan attached to the bill of exceptions. The plaintiff Bradley occupied premises at the comer of Windsor and Main streets, the building thereon fronting on Main Street. The plaintiff Bond occupied premises at the corner of Liberty and Main streets, the buildings thereon facing Main Street, the rear of the buildings being next to the rear of the building occupied by Bradley. In the record there are no facts admitted or any testimony which shows when or under what authority Main, Windsor or Liberty Street was laid out or constructed. The plan attached to the bill of exceptions discloses that at the time of the trial
There was undisputed evidence that from 1922 until 1930 one Coyne was city engineer and superintendent of streets of the city of Marlborough, and was in charge of construction; and that said Coyne, in the summer of 1927, designed and constructed a reinforced concrete culvert, about four and one half feet high and three and one half feet wide, which ran, in place of the open brook, from the Windsor Street culvert, back of the Bradley and Bond premises fifty-three feet to the west end of the culvert under Liberty Street. The plaintiffs make no claim in the pleadings or evidence that the reinforced concrete culvert between Windsor and Liberty streets was improperly constructed, but contend that the introduction of the square cement system back of Bond’s premises, a loop around Main ■ Street, and the piping of Artemas Ward Park had increased the velocity of the water over what it was when there was an open brook; that the increased velocity of the water introduced under Liberty Street would have a tendency to pound the walls of the culvert harder than when there was an open brook; and that that was why Coyne, in the summer of 1927, smoothed off and pointed up with plaster both sides of the culvert under Liberty Street, from the westerly end clear through the culvert to the beginning of another concrete culvert shown on the plan.
It appeared in evidence that Coyne, in doing this work back of the plaintiffs’ premises, in putting in the fifty-three foot cement, square culvert, and in pointing up the culvert
It appeared in evidence that on November 3, 1927, at about five or six o’clock in the evening it began to rain, and rained spasmodically during the evening; that then it rained hard; and that then for periods of fifteen or twenty minutes there would be downpours of rain, then an apparent lull when it was still raining hard, and then another downpour. The last of these occurred between ten o’clock at night and about three o’clock in the morning. The precipitation was excessive. Water came from manholes and out of a hole or washout in Liberty Street, and went into the cellars of the plaintiffs.
Considering the entire evidence, it cannot be ruled that Coyne was not negligent in the designing of the reinforced cement culvert, or in not ascertaining, while constructing the reinforced concrete culvert in place of the open brook, the condition of the Liberty Street culvert, in view of the possible effect upon its walls of the velocity of the water of the reinforced concrete culvert as planned. If Coyne was acting as agent for the defendant in constructing the reinforced concrete culvert, or in undertaking to strengthen the walls of the Liberty Street culvert to withstand the velocity of the water which should come against these walls from the reinforced concrete culvert, the question of his negligence and that of the negligence of the defendant were for the jury. On the other hand, if Coyne, in such connection, was acting as a highway surveyor, that is, as a public
The statutes applicable to the issues are (1) G. L. c. 43, § 5, which reads: "Until superseded under this chapter, the organization of the executive and administrative departments, and the powers and duties of the officers and employees of any city adopting any of the plans provided for in this chapter, and the fiscal year of such city shall remain as constituted at the time of the adoption of such plan; but the city council or other legislative body may at any time by ordinance, consistent with general laws, reorganize, , consolidate or abolish departments, in whole or in part; transfer the duties, powers and appropriations of one department to another, in whole or in part; establish new departments; and increase, reduce, establish or abolish salaries of heads of departments or members of boards. This section shall not authorize any action in conflict with chapter thirty-one.” (2) St. 1890, c. 320, § 26, as amended by St. 1893, c. 322: . Section 26. The mayor shall appoint annually in the month of January, subject to the confirmation or rejection of the board of aldermen, a superintendent of streets, who shall hold office for one year from the first Monday of February in the year in which he shall be appointed and until his successor is appointed and qualified, unless sooner removed. He shall be removable by the mayor, with the consent of the board of aldermen, and a vacancy may be filled at any time by the mayor and alder
The motions of the defendant for directed verdicts, based upon undisputed evidence that, as a matter of law, the superintendent of streets was acting, not in his capacity as an appointed officer and as agent of the defendant, but as a surveyor of highways or as a road commissioner under
So ordered.