167 Mass. 258 | Mass. | 1897
The writ is dated August 8, 1895, and the trial was in March, 1896.
The case was tried before a jury in the Superior Court and after verdict was reported by the presiding justice for the determination of this court. The report, after reciting a few facts as to which we assume there was no dispute, states that the jury took a view, and that material evidence was introduced by both parties, and then recites the testimony of five witnesses called by the plaintiff, and of three called by the defendant, as all that is material to the issue. The report then states that, after this evidence was in, the defendant asked the court to rule that the plaintiff could not recover, and further offered in evidence certain city ordinances for the purpose of showing that the plaintiff was not legally connected with the sewer, and for any other purpose for which they might be competent. The plaintiff objected to the admission of this line of defence because it was not specifically set out in the answer. The presiding justice excluded evidence of the ordinances, and required the jury to find whether a want of due care on the part of the plaintiff contributed to the overflow into his cellars, and whether the want of due care by the defendant in the construction or maintenance of its sewer was the sole cause of the overflow, and the amount of damage, if any, which the plaintiff suffered in his property as the direct result of the overflow. The jury then found that the plaintiff’s injury came in no wise from his neglect, but did result from the negligence of the defendant, and that the plaintiff’s damages were
The question for our decision is therefore whether there is any view of the whole evidence upon which the plaintiff was entitled to have the case submitted to the jury. Upon an examination of. the reported evidence, we are of opinion that the plaintiff was not entitled to have the case submitted to the jury.
Upon his land at the corner of Jackson and Summer Streets the plaintiff had built two brick tenement houses. The one upon the corner of the lot upon the two streets was built in the year 1881, and the other on Jackson Street and in the rear of the first was built in 1887. Running from Jackson Street behind the rear block was an alleyway. In the front block, besides apartments for dwellings, there was also a shop. In Jackson Street was a city sewer, built between the years 1876 and 1880, designed to collect and transmit to the river both ordinary sewage and the surface water, the sewage being admitted by house connections, and the surface water by catch-basins placed in the streets. As. originally built, this sewer descended Jackson Street past the plaintiff’s blocks, crossed Summer Street following Jackson Street to Canal Street, and, turning to the left at the corner of Jackson and Canal Streets, was continued down Canal Street past the foot of Adams Street and of Sargent Street, -which were streets parallel with Jackson Street, to a point in Canal Street opposite the overflow of the Holyoke Water Power Company’s third-level canal, where the sewer turned to the right and was led into the river under the overflow. In Canal Street there was a well-hole in the sewer between Jackson and Adams Streets. In Jackson Street and in Canal Street to the well-hole this sewer was of brick, twenty-six inches high and about twenty inches wide. From the well-hole to its lower end at the river it was of iron, five feet in diameter, and this part of the sewer served as the discharge of another sewer in Adams Street. In
Both of the plaintiff’s blocks had house connections with the Jackson Street sewer, and the plaintiff testified that both blocks had always been connected with that sewer. Besides the making of these original connections with the sewer when the blocks were built, the plaintiff testified that he put a pipe from the shop in the front block into the sewer in October, 1891, and that he made changes in the plumbing of the rear block by taking a sink and a bathtub out from the cellar of the rear block which had been laid out for a washroom, he testifying that he took out the sink and bathtub “ two or three years ago,” and again that he took out the sink “ about four or five years ago,” so that it appeared that he made changes in the drainage system of the blocks from 1891 to 1891.
We find no direct testimony that any person other than the superintendent of streets dug up the street, or opened the sewer to connect the plaintiff’s blocks with it, and none that his particular drains which entered the sewer, or the plumbing upon his own premises, was not of the required materials or grade. Nor was there any direct testimony to the effect that the particular drains were put in by the superintendent of streets, or under the direction of the mayor and aldermen, or that the plumbing of the blocks conformed to the requirements of the ordinances as to materials, grade, and other particulars. Two of the ordinances were in force from October 27, 1875, and three from June 30, 1885. None of them required, in terms, an application to the city authorities on the part of a person intending to connect his premises with a sewer, but the last ordinance of June 30, 1885, requires that, before proceeding to construct any portion of the drainage system of a building, or to make any changes in the existing drainage system, the owner shall file with the city engineer a plan showing the whole drainage system from its connection with the sewer to its terminus in the house, together with the location and size of all branches, traps, ventilating pipes, and fixtures, which plan must be in accordance with the ordinances, and indorsed with the word “Approved,” signed by the city engineer, and kept on file in his office. The city engineer, who had held that office for one year, testified: “ I looked for an application by Mr. Breuck for the entry of the pipe into the sewer in the city, and could not find it. If there had been one, I think I should have been likely to find it. There is usually a record. I found no record of it.” We have now referred to all the testimony bearing upon the question whether the plaintiff had been guilty of a breach of any of the ordinances, save that the city engineer testified that he had «visited the front house, and had seen where one sewer entered, — the one in the front house, — and that it seemed to him that the sewer was built before the house was ; and the plaintiff testified that the only sewer pipe of the rear house was the same with that of the front house, the pipe going through both houses.
It is contended by the plaintiff that the jury might find that any infractions by him of these ordinances were waived by the city authorities. We find, however, no evidence from which such a waiver can fairly be inferred. The ordinances do not require a consent on the part of the city authorities, as was required by the ordinances considered in Livingstone v. Taunton, 155 Mass. 363, in Sheridan v. Salem, 148 Mass. 196, and in Ranlett v. Lowell, 126 Mass. 431. The ordinances in the present case prescribed by whom and how the work should be done, and made the act of the" owner in filing a plan a condition precedent. In Sheridan v. Salem there was evidence that the permission which the ordinance required to be in writing was given orally, and was reported to the mayor and aldermen.
In the present case we note, in addition to the fact that the houses were connected with the sewer from the time when they were erected, no evidence from which it is contended that a waiver can be inferred, except the testimony that on several occasions the city pumped the water out of the plaintiff’s cellars. Such assistance is granted to persons where cellars may have been flooded for any cause, and would not justify a finding that the plaintiff’s breaches of the sewer ordinances were waived by the city.
There was testimony that there was, especially during rains, great back pressure upon the water in the sewer, so that it would back up in pipes in the house as high as fourteen feet above the cellar, and would spout up three or four feet from the catch-basin on Jackson Street, and that there was a place where it came from the sewer through the back alley, and that it used to spout out of the manhole like a fountain, and other testimony, from all of which the jury might find that water was forced from the sewer on to the plaintiff’s premises in other ways than through the sewer connections with the blocks.
But the plaintiff’s own testimony, and that of other witnesses whom he called, and who had occupied tenements in his blocks, was that water also came from the sewer upon his premises through the pipes connecting them with the sewer. The only damages • which the evidence tended to show were due to the mechanical effect of the water in causing the buildings to crack and settle. The damage so caused by water which found its way to the premises through or in consequence of the house connections with the sewer cannot be separated or distinguished from the damage caused by water thrown from the catch-basins or manholes, or forced through the walls of the sewer and the soil of the street upon the plaintiff’s premises. The evidence, therefore, tended to show no damage which was not caused in part by the connections with the sewer made and maintained by the plaintiff contrary to the city ordinances ; and this brings the case within the ordinary rule, that a plaintiff cannot recover
It is not an answer to say that the jury found specially that the want of due care by the defendant in the construction or maintenance of the sewer was the-sole cause of the overflow,, for the reason that the city ordinances were not before the jury. The greatest possible effect which, under the circumstances, can be given to the special findings, is that the overflow was due to faulty construction or maintenance of the sewer, and was not at all caused by any faulty construction of the plaintiff’s connections with the sewer. The findings are not inconsistent with the defendant’s contention that the connections themselves were made in contravention of the ordinances; and because upon the evidence all the damage which it tended to show was due in part to water which came into the premises through those connections, the plaintiff was not entitled to have the case submitted to the jury. Verdict for the defendant to stand.