297 Mass. 479 | Mass. | 1937
These two actions of tort were tried together in a district court. The plaintiffs seek to recover for damage alleged to have been caused to their respective houses by blasting operations negligently conducted upon land of the defendant in connection with the necessary removal of a ledge encountered in excavating a cellar for a house erected thereon by the defendant. Much of the evidence at the trial related to cracks in the plastering in the houses of the plaintiffs, some of which were conceded to be the result of settling and shrinkage and to have existed before the blasting was done. It was the contention of the plaintiffs that other cracks were caused by the vibration due to the blasting. There was evidence that the blasting on the land of the defendant was done by an independent contractor through a subcontractor. There was no evidence of any negligence in the way the blasting
The plaintiffs in the first action made the following requests for rulings of law: “1. Upon all the evidence it appears that the plaintiffs were the owners of a certain dwelling house; that the defendant, in the erection of a building on a nearby lot, carried on blasting operations, by reason of which the dwelling house of the plaintiffs was damaged; that the defendant did not use due care in said blasting operations; that he gave no notice to the plaintiffs of his intention of carrying on said blasting operations; that he took no precautions to prevent injury' to the plaintiffs’ property; that he was notified that damage was being done to the property of the plaintiffs, but continued nevertheless with said operations, whereby the same damage resulted. The plaintiffs should recover”; “2. From the facts as set forth in paragraph 1, and relying upon same, the court should rule that the building was damaged during the construction work carried on in an adjoining lot, and the plaintiffs should recover”; "3. From the facts set forth in paragraph 1, it would appear in addition thereto that the ridge of rock was such that it required terrific blast to dislodge same, and the defendant was bound to exercise due care, so as not to materially injure the plaintiffs’ dwelling”; and “4. The fact that a permit was granted to the defendant to use explosives does not confer
On appeals like the present, findings of fact made on oral evidence are not reviewable. Engel v. Checker Taxi Co. 275 Mass. 471. Winchester v. Missin, 278 Mass. 427, 428. Mahoney v. Norcross, 284 Mass. 153. Such an appeal brings before this court for consideration only rulings of law made by the trial judge and reported by him to the Appellate Division and questions of law concerning the action of the Appellate Division thereon. G. L. (Ter. Ed.) c. 231, §§ 108, 109. Woodman v. Haynes, 289 Mass. 114. Bresnick v. Heath, 292 Mass. 293, 296. The general finding in favor of the defendant imports the drawing of all rational inferences to support that conclusion which are permissible on the evidence and a finding of all subsidiary facts conducing to that result of which the testimony is susceptible. The credibility of the witnesses is exclusively for the trial judge. Standard Oil Co. of New York v. Malaguti, 269 Mass. 126, 129. Topjian v. Boston Casing Co. Inc. 288 Mass. 167. MacDonald v. Adamian, 294 Mass. 187, 191. A trial judge in these circumstances cannot be compelled to make findings of fact in writing although requests to that end are not infrequent. Maglio v. Lane, 268 Mass. 135. Castano v. Leone, 278 Mass. 429, 431.
There was no error on the part of the trial judge in denying the first, second and third requests. They were requests for findings of fact and not for rulings of law. Each was based upon an assumption of facts contrary to the findings of fact made by the trial judge. There was no evidence in the cases at bar that the blasting caused
In each case the entry may be
Order dismissing report affirmed.
