318 Mass. 626 | Mass. | 1945
These are two actions of tort brought to recover for damage to personal property of the' plaintiffs which was sustained on October 27, 1941, as a result of the breaking of a pipe in the sprinkler system in the premises occupied by the plaintiffs in the first ease, causing a large quantity of water to escape into the adjoining premises which were occupied by the plaintiff in the second case. This pipe was broken when it became unable to withstand the weight of a filter bag which was tied to it and which comprised a part of a dust collecting system of the plaintiffs in the first case. The declaration in each case consists of a single count in which the only ground of negligence alleged is that the defendant “negligently attached an object to the sprinkler system in said premises with the result that the same broke,” damaging the property of the plaintiffs. The cases are here on two exceptions to the exclusion of evidence and an exception to the granting of a motion for a directed verdict in each case.
The plaintiffs in the first case, hereinafter called the plaintiffs, occupied part of the first and third floors and all of the second floor in a certain building in Worcester in which they conducted the business of repairing, cleaning and shipping old burlap bags. The bags were cleaned by placing them in tubes on the second floor where the dust extracted from them by suction was driven to the third floor into a separator which collected the heavier particles of dust and shunted them to the second floor and blew the lighter dust through an air vent into a filter bag. According to the plaintiffs’ foreman, there were thirteen dust separators located upon the third floor. A filter bag was attached to each of these separators. The filter bag in question was twenty-eight feet long and four feet in diameter. One end of the bag was connected with the discharge vent of the dust separator by being drawn over an elbow and fastened there by a metal ring encircling the end of the bag. The other end of the bag was constructed to be supported by a rope which ran through a pulley attached to
There was evidence that the defendant, a sheet metal contractor, had installed all the sheet metal work of these cleaning systems; that he had nothing to do with the installation of the filter bags; and that for some time before and at the; time of the accident, and for a month or more afterwards, his employees were engaged in installing new cleaning systems or units. His employees were working-on the third floor in the plaintiffs’ factory, where the dust separators of the cleaning systems, including the filter bags, were located, on the Saturday afternoon preceding the Monday morning when the sprinkler pipe was broken. The plaintiffs’ factory was not in operation on that afternoon but the plaintiffs’ foreman was there when these employees left. There was a conflict in the evidence as to how long the end of the filter bag had been tied to the sprinkler pipe before the pipe was broken. Sometime before the accident it became necessary to repair a baffle plate which was located inside the dust separator a short distance from the discharge vent to which the end of the filter bag was connected. The evidence was contradictory as to whether this plate had been repaired a week or two weeks' before the accident or on the preceding Saturday afternoon. Whenever it was done, it was done by the defendant’s employees. To make this repair it was necessary to disconnect the end of the filter bag from the discharge vent, and after repairing the plate to connect the bag with the vent. There was no direct evidence that in performing this work the rope supporting the farther end of the bag was tied to the sprinkler pipe by the defendant’s employees. The defendant’s foreman testified that “he did not release the other end of the bag.” The plaintiffs had over eighty employees, some of whom had duties to , perform on the third floor, and the occasion for them to go to the third floor seems to have
There was no direct evidence that the rope at the end of the filter bag was tied to the sprinkler pipe by anyone for whose conduct the defendant was responsible, and there was direct evidence that none of the defendant’s employees attached the rope to the pipe. Of course, the jury could disbelieve this evidence, but mere disbelief is not the equivalent of affirmative evidence of facts to the contrary. Boice-Perrine Co. v. Kelley, 243 Mass. 327, 330. Fitch v. Ingalls, 271 Mass. 121, 127. Zarrillo v. Stone, 317 Mass. 510, 512. Disregarding, as we must, the evidence tending to show that the rope was tied to the sprinkler pipe for a considerable time before the accident and that the plaintiffs’ employees who cleaned out the bag knew that the end was supported by the sprinkler pipe, and assuming that the rope was so attached sometime subsequent to the Saturday noon preceding the accident, yet the third floor was not in the exclusive possession of the defendant’s employees from that time up to the time of the accident. It was not shown that none of the plaintiffs’ employees was on the third floor from Saturday noon until the pipe was broken on
The plaintiffs make the further contention that they were entitled to have both cases go to the jury because there was evidence that, when the employees of the defendant quit work on the Saturday afternoon before the accident, the defendant’s foreman told Franco, the foreman of the plaintiffs in the first case, that "Everything is O.K.,” that the plaintiffs’ foreman in starting the system had a right to rely upon this assurance of safety by the defendant’s foreman, and that the giving of this assurance constituted negligence of the defendant. And in this connection the plaintiffs further contend that the judge erred in excluding evidence that in starting the cleaning' system on Monday
An assurance of safety given by a defendant to a plaintiff to whom a defendant owes a duty to keep his premises or a chattel in reasonably safe condition for the plaintiff’s use is undoubtedly a material factor in an action of tort brought to recover damages when the assurance of safety turns out to be false. See Garland v. Townsend, 217 Mass. 297; Wilson v. Daniels, 250 Mass. 359; Rudomen v. Green, 299 Mass. 485; Ferguson v. Ashkenazy, 307 Mass. 197. Here it is not shown that the defendant had assumed any duty to put the entire cleaning system in a safe condition, or that he had assumed any duty in regard to the filter bag or the manner in which the end of it was supported by the rope, or that his foreman had any authority to state that the entire cleaning system was in safe condition. The statement of the foreman, in effect, that the system was in proper condition could not be reasonably understood to extend beyond the repair job that he had done upon the baffle plate. Neither was the foreman under any duty to the plaintiffs to report that the end of the filter bag was supported by the sprinkler pipe if the defendant was not responsible for bringing about that condition. But the short answer to all these contentions is that none of them was open on the pleadings, which confined the defendant’s negligence to tying the rope to the sprinkler pipe. No other issue was raised. A judge is not in error at a trial on the merits in excluding evidence in support of a contention that is not open on the pleadings. Coughlin v. Coughlin, 312 Mass. 452, 454, and cases cited. Zarski v. Creamer, 317 Mass. 744, 747.
Exceptions overruled.