314 Mass. 180 | Mass. | 1943
This is an action of tort. The declaration alleges negligence in permitting water to leak from the defendant’s premises to the plaintiffs’ premises on the floor below, causing damage to the plaintiffs’ property. The three counts allege such negligence on three different days, respectively, March 27, March 29, and March 30, 1937.
The case was referred to an auditor whose findings of fact were to be final, and comes here on his report. On his report judgment was ordered for the defendant on the first two counts, and for the plaintiffs on the third count with damages of $1,051.09. Both parties appealed.
The findings of the auditor may be summarized as follows. The plaintiffs occupied the second floor, and the defendant the third floor, in the Durfee Mills in Fall River. There was a leakage of water from the defendant’s premises to the plaintiffs’ premises on each of the three days mentioned in the declaration. The leakage came from a recently installed pressing system using thirty irons through which steam passed. The water came through a leaky valve connected with one of the irons. The leaks occurred at about seven o’clock in the morning, when the steam was turned on and forced whatever condensation was' in the system to escape through the leaky valve and the iron at
In our opinion judgment for the defendant was rightly ordered on the first two counts. The defendant had no reason to apprehend injury to the plaintiffs until after the leak that occurred on the morning of March 29. The principle of Rylands v. Fletcher, L. R. 3 H. L. 330 (Gorham v. Gross, 125 Mass. 232, 238) does not impose liability for ordinary uses of property like the one presented in this case, which involved no great threat to neighbors. Ainsworth v. Lakin, 180 Mass. 397, 399. Kaufman v. Boston Dye House, Inc. 280 Mass. 161. Bratton v. Rudnick, 283 Mass. 556, 560-562. Garrett v. M. McDonough Co. 297 Mass. 58. Neither is this a case to which the doctrine res ipsa loquitur is applicable. This has been decided in cases where, as in this case, a leak occurred in a pipe. Morrow v. Otis, 251 Mass. 65, 67. Goldman v. Boston, 274 Mass. 329. Gerard v. Boston, 299 Mass. 488. Moreover, that doctrine merely permits, and does not require, the conclusion that there was negligence (Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234; Garrett v. M. McDonough Co. 297 Mass. 58, 60), and here negligence is negatived, in our opinion, by the findings already recited.
The case is different with respect to the leakage which occurred on March 30. The defendant had notice on the day before that water had escaped and had damaged a large quantity of the plaintiffs’ goods. “An employee of the plaintiff[s] went to the defendant’s premises to ascertain what had caused the leak, and found that the water had come from the defendant’s pressing system.” At that
We have left to consider whether there was error in assessing the damages at $1,051.09. The plaintiffs are engaged in the manufacture of boys’ wash suits, woollens and cottons. The leakage on March 30 caused damage to goods of the plaintiffs of a fair market value of $1,201.25 before the damage. But after the damage the market value was only $150.16. The plaintiffs made no effort to salvage the damaged goods. If they had spent $125 in washing, cleaning and pressing them, they could have made the damaged goods worth $790.84. The plaintiffs suffered no damage to their remaining stock by reason of broken lots or sizes.
A party injured by a tort has a duty to use reasonable care to minimize the damages. Loker v. Damon, 17 Pick. 284, 288. Eastman v. Sanborn, 3 Allen, 594. Atwood v. Boston Forwarding & Transfer Co. 185 Mass. 557. Ingraham v. Pullman Co. 190 Mass. 33. Sullivan v. Old Colony Street Railway, 200 Mass. 303, 309. Fairfield v. Salem, 213 Mass. 296. Gray v. Boston Elevated Railway, 215 Mass. 143, 147. In this case, although goods of the value of $1,201.25 were damaged, by the expenditure of $125 they could have been made worth $790.84. The net loss would have been
So ordered.
