2 Mass. App. Ct. 169 | Mass. App. Ct. | 1974
In this action of tort for negligence the jury returned a verdict for the plaintiff. Thereafter the judge ordered the entry of a verdict for the defendant under leave reserved. G. L. c. 231, § 120. The plaintiff duly excepted to that order. The case is before us not only on the plaintiff’s bill of exceptions, but also on the defendant’s exception to the allowance of the plaintiff’s motion to file its bill of exceptions late.
1. We first consider the defendant’s exception. In the case at bar counsel for the plaintiff failed to file a bill of exceptions within twenty days following the entry of the verdict as required by G. L. c. 231, § 113, in its original form.
2. We now consider the plaintiff’s exception to the order for the entry of a verdict for the defendant under leave reserved. It is well settled that the test for reviewing the correctness of such an order is the same test that is applied in the case of a motion for a directed verdict (O’Brien v. Myers, 354 Mass. 131, 132 [1968]) — “whether the evidence in its aspect most favorable to the plaintiff could rightly be found to support the contentions essential to the maintenance of his cause of action.” Petrangelo v. Pollard, 356 Mass. 696, 697 (1970), quoting from Holton v. Shepard, 291 Mass. 513, 515 (1935). Thus, in an action alleging negligence, the judge’s order “will be upheld only if on the pleadings the evidence (a) did not warrant a finding that the defendant was negligent, or (b) required a finding that the plaintiff was contributorily negligent.”
We summarize the evidence most favorable to the plaintiff (Adams v. Herbert, 345 Mass. 588, 589 [1963]; Petrangelo v. Pollard, supra, at 697), to determine therefrom whether support could be found for the plaintiff’s allegation that the defendant negligently caused a water pipe to break, as a result of which the plaintiff’s property was damaged by water.
The plaintiff corporation, engaged in the leather business, was a tenant in the basement of a building in Lynn and used the space for the storage of leather soles in burlap bags. The defendant corporation became a tenant in the floor directly above the premises leased by the plaintiff. Certain machinery used by the defendant required the installation and connection of water pipes. On various occasions prior to September 18, 1963, water had leaked from the defendant’s premises into the plaintiff’s premises.
On the evening of September 18, 1963, the defendant was in the process of moving its equipment from its premises in Lynn. The defendant had engaged one Blanchard to assist with the moving.
From this evidence the jury could have found that the defendant was aware of the potential hazard, that it was under a duty to disconnect the water pipe before the machinery was moved, that it committed a breach of that duty, and that such breach was the proximate cause of the damage sustained by the plaintiff. The jury could further have found that the defendant should have foreseen that the act of Blanchard in moving the machinery with the pipe still attached would result in the rupture of the pipe. Assuming arguendo that the action of Blanchard, in relying on the foreman’s assurance that the pipe had been disconnected, amounted to negligence, “[i]t is well settled that the intervening negligence of a third person which contributes to an injury does not necessarily break the causal connection between the conduct of an earlier wrongdoer and the injury.” Buda v. Foley, 302 Mass. 411, 413 (1939). Prosser, Torts (4th ed.) § 44. In this case Blanchard’s intervening conduct was not of such a nature as to sever the chain of causation between the defendant’s acts and the resulting damage to the plaintiff. See Morrison v. Medaglia, 287 Mass. 46, 49-50 (1934), and cases cited. We conclude that it was error to have ordered the entry of a verdict for the defendant under leave reserved.
The bill of exceptions filed by the plaintiff in this case is inordinately lengthy and unnecessarily verbose. The exceptions can hardly be said to have been “reduced to writing in [the] summary manner” required by G. L. c. 231, § 113. “This requirement of the statute is some
The defendant’s exceptions are overruled. The plaintiff’s exceptions are sustained. The verdict for the defendant under leave reserved must be set aside and the original verdict for the plaintiff is to stand.
So ordered.
A motion for an extension of time for filing a bill of exceptions, filed within the twenty day period (see Rule 73 of the Superior Court [1954]), was not acted upon within such period.
The 1945 amendment added the following sentence to § 113, which the parties agree is here applicable: “If, through inadvertence, a party who has duly claimed exceptions failed to file a bill of exceptions within said twenty days or within such further time as may have been allowed, the presiding justice may, before final judgment, upon motion after notice and hearing, allow a bill of exceptions to be filed and may allow such bill of exceptions.”
Part (b) of this statement is applicable only to causes of action arising before January 1, 1971, such as the one in the instant case. See G. L. c. 231, § 85, as amended by St. 1969, c. 761, § 1, and as further amended by St. 1973, c. 1123, § 1.
The docket entries disclose that Blanchard was impleaded as a third-party defendant, and that the jury returned a verdict for Blanchard.