Fairfield v. City of Salem

213 Mass. 296 | Mass. | 1913

DeCourcy, J.

The instructions requested by the defendant invoked the rule of avoidable consequences, but they failed to recognize the limitations of that rule. Although the plaintiff could recover only for the direct consequences of the defendant’s wrong, and not for damages that were avoidable by the use of reasonable precautions on her part, she was not called upon to take unreasonable steps to make the loss less aggravated, nor was she required to commit a wrongful act or to trespass upon the property of another in order to abate the nuisance.

The court could not rule as matter of law that the plaintiff’s only plan to follow was that of dredging the dock from time to time, and that consequently the measure of her recovery was the cost of such dredging and the damage occasioned by the incidental interference with her coal business. The instructions requested assume that the plaintiff was free to dredge the dock at any time; but this work must be done within tide water, and there was evidence that the harbor and land commissioners refused to give the necessary permit. R. L. c. 96, § 25. When she did get permission from the commissioners in 1909, it appears that a neighbor, Langmaid, objected to any trespass upon his dock by the dredging company, and that the work upon the plaintiff’s premises would be ineffectual unless the Langmaid dock also was dredged. White v. Chapin, 102 Mass. 138. Even if she were free to do the work the jury might consider that she was warranted in relying upon the assurance of the public officials that the city would dredge the dock. And in determining what steps the plaintiff should have taken to reduce the damages it was necessary to consider other elements, such as the cost of doing the work of dredging, the number of times that it should be done in order to remove the filling that was being deposited continuously, and the extent of interruption of the plaintiff’s business. Clearly these issues of fact were for the jury; and they were submitted with instructions that were clear and complete. Brayton v. Fall River, 113 Mass. 218. French v. Connecticut River Lumber Co. 145 Mass. 261.

Exceptions overruled.