353 Mass. 527 | Mass. | 1968
The plaintiff had verdicts under both counts of her declaration. The first count is for damage to the plaintiff’s building at 157 Pearl Street in Malden by reason of the defendant’s negligence in the construction and installation of a water main in Pearl Street. The second count is for negligence in the construction work in failing to shore up the excavation and install lateral supports. The counts are not stated to be for the same cause of action. The defendant excepted to the denial of its motion for directed verdicts and to the admission of certain evidence.
1. The evidence of the plaintiff made out a case for liability for negligence. The evidence showed damage by vibration from two causes, (1) pounding in the street
There was evidence of alternative safer methods of doing the work, that is, breaking up the pipe by burning with an acetylene torch after carefully flooding the pipe to exclude any old trapped gas, and by shoring the trenches and chamber tightly with wooden shoring and underpinning the house. That the methods used were lawful or called for by the contract did not excuse the defendant.
2. There was evidence of damage to take the case to the jury under count 1. Photographs of the house were in evidence. There was evidence that the house was seventy-five or eighty years old, had been assessed for $7,500 in 1957, had a rented market in the front and rented quarters in the rear, and that no permanent repairs had been made since the time of the damage. There was testimony describing the cracks and bulging caused by the defendant’s operations. A contractor called by the plaintiff testified, subject to exception, that the fair market value of “the
The uncertainty as to the full extent of the damage to the plaintiff’s property did not warrant a directed verdict. The defendant did not cross-examine the contractor in this aspect
An “element of uncertainty ... is not a bar . . . . ‘Much .must be left to estimate and judgment, sometimes upon meager evidence.’ Piper v. Childs, 290 Mass. 560, 563.” Dalton v. Demos Bros. Gen. Contractors, Inc. 334 Mass. 377, 378-379. See Agoos Leather Cos. Inc. v. American & Foreign Ins. Co. 342 Mass. 603, 608, and cases cited (it is enough to show the extent of damage by just and reasonable inference; approximate estimate will suffice).
3. The defendant contends that there was error in allowing an expert to testify to a connection between cracks, settling and bulging in the structure and the pounding in the street, and the seepage and sliding of earth into the trenches. The errors claimed lie in the hypothetical questions. No specific objections to the questions were stated; there was no motion to strike after it appeared that defects
4. The submission to the jury of count 2 was warranted by the evidence but with careful instructions in view of the circumstances discussed below. Conceivably the jury could have found that the negligent failure to shore the excavation and install lateral supports was a cause of all the damage they deemed established. But count 2 appears to state a cause of action that is necessarily included in the generality of count 1. The verdicts were in the same amount ($5,750) under each count. The bill of exceptions does not include the charge. In the circumstances it is uncertain whether the jury found total damages of $11,500 and divided the sum between the partially overlapping counts, or found total damages of $5,750. In any event the plaintiff, recovering under count 1, is not entitled to recover under count 2. Although the defendant shows no error in respect of the exceptions presented, justice requires the disposition next provided.
5. If the plaintiff in the Superior Court within thirty days of rescript shall waive her verdict under count 2 the entry shall be: Exceptions overruled. Otherwise the entry shall be: Exceptions sustained: New trial on the issue of damages only; the plaintiff must elect between the counts.
So ordered.
The contract with the Commonwealth provided that the contractor should take all responsibility for the work and “take all precautions for preventing injuries to persons and property in or about the work.”
The bill shows only: “He [the contractor] testified in cross examination when asked if he thought it good business to put $18,000.00 into a house that is assessed for $7200.00, he has seen them put a lot more in a house that was assessed for a lot less.”