Fuller v. Andrew

230 Mass. 139 | Mass. | 1918

Rugg, C. J.

This case comes before us by report, after a verdict but while a motion for a new trial is pending, the presiding judge stating that he is of opinion that the verdict should be set aside solely because of excessive damages. The questions of law presented by the report arose at the trial before the jury and affect • decisive issues as to liability. Power to report exists under these •circumstances. St. 1910, c. 555, § 5. Smith v. Lincoln, 198 Mass. 388, 392. Strong v. Carver Cotton Gin Co. 202 Mass. 209, 212. Lee v. Blodget, 214 Mass. 374. Chertok v. Dix, 222 Mass. 226, 228. Edwards v. Willey, 218 Mass. 363. Weil v. Boston Elevated Railway, 216 Mass. 545, 549; S. C. 218 Mass. 397, 401.

The plaintiff .seeks to recover for the conscious suffering and death of his intestaté. St. 1907, c. 375, § 1. On the morning of September 26, 1915, a party, of whom the plaintiff’s intestate was ■ one, embarked on a motor boat for a day on Boston harbor. The injuries to the deceased resulted from the collapse of a portion of . a pile wharf when the boat was driven against and under it by the force of wind and wave during a heavy blow in the evening- • of that day. The wharf was a wooden pile structure about two hundred and fifty feet long, twenty feet wide, and at its outboard end about nineteen feet in height above mean low water. It projected from the shore of the defendant’s land on Peddocks Island in Boston harbor. It was in the water below mean low water for about one hundred and forty feet, and it was a part of this, portion which collapsed on the boat in question. It was built in 1909 by Thomas H. Gill and Company by virtue of an agreement with the defendant relating to the sale by her to them of loam from the island, whereby they were allowed to build the wharf with the privilege of removal, but, if not removed, it was to become the property of the defendant. The wharf was used by Thomas H. Gill and Company for their purposes of loading loam, but was not removed by them. Their work ended in 1909. Thereafter the wharf was in charge of the agent of the defendant. There was evidence that neither the erection nor maintenance of the wharf had been licensed by the harbor and land commissioners, as required by R. L. c. 96, § 17.

The wharf might have been found to be an obstruction to navigation. Attorney General v. Woods, 108 Mass. 436. The absence of a license was sufficient evidence that the wharf was a public nuisance, and that any person who built or maintained the wharf, knowing that it was not licensed, would be liable in a civil action to a person injured, while in the exercise of due care, by collision with it. Benson v. Malden & Melrose Gas Light Co. 6 Allen, 149. Fairbanks v. Kemp, 226 Mass. 75. R. L. c. 96, § 25. The character of the wharf as a public nuisance, or the special injury suffered thereby by the intestate, cannot be controverted. It is argued in behalf of the defendant that since the portion pf the wharf which fell was supported on piles driven into the bed of the harbor below low water mark by Thomas H. Gill and Company and not by herself, title to that portion of the structure vested immediately in the Commonwealth as the owner of the fee, Commonwealth v. Boston Terminal Co. 185 Mass. 281, 282, Commonwealth v. Alger, 7 Cush. 53, 65, and since she has not used the structure she cannot be held responsible for it in any sense. This contention cannot be supported. The wharf was erected with , the knowledge and express consent of the defendant. There was a definite agreement between her and Thomas H. Gill and Company that, if the latter did not remove the wharf, title to it should vest in her. It was erected as a single structure. The nature and purpose of its construction required not only the part of it which was upon land of the defendant, but also that which was supported on piles driven below low water mark. While doubtless it would have been possible to remove that portion of the wharf resting upon the bed of the harbor in public ownership, its essential character and previous use demonstrates that it was a unit of which all its parts were necessary elements. One end of it rested upon her land. The manifest design of the whole structure was for use in connection with her land. It is .somewhat similar to a building, a part of which is within the limits of a public way. The defendant does not appear to have made active use of the wharf. But her agent testified that he had charge of it after Thomas H. Gill and Company left it, that he had been on and round it a good many times, had examined the piles a number of times, and considered them sound. The inference was warranted from all the circumstances and testimony that the defendant took possession of the wharf and exercised control over and hence was responsible for it. Rockport v. Rockport Granite Co. 177 Mass. 246, 256.

The facts that the defendant did not construct the wharf and was not expressly notified to remove it as a nuisance do not exonerate her from liability as matter of law. There are expressions in decisions to the effect that one who continues a nuisance is liable as well as he who establishes it. Staple v. Spring, 10 Mass. 72, 74. Hodges v. Hodges, 5 Met. 205. Fowle v. New Haven & Northampton Co. 107 Mass. 352, 355. One who is not responsible for the creation of a private nuisance cannot be held liable for its subsequent maintenance merely because he has become the owner of it. It is the general rule that he must have notice to abate it, or knowledge that it is a nuisance and injurious to others, before he can be held liable for it. McDonough v. Gilman, 3 Allen, 264. Nichols v. Boston, 98 Mass. 39. But this is not the governing principle as to the maintenance of public nuisances. Ordinarily liability arises for maintaining structures which constitute or cause a public nuisance, whether built by the person charged or by some predecessor in title. This rule is well established, and the distinction between private and public nuisances as to the requirement of notice to abate is thoroughly imbedded in our jurisprudence. Leahan v. Cochran, 178 Mass. 566. Hynes v. Brewer, 194 Mass. 435, 439. The wharf being a public nuisance, the defendant .may be held responsible, without notice to abate, if other elements of liability are made out.

The wharf was built by Thomas H. Gill and Company, resting partly upon land of the defendant and extending from her land into the waters of the harbor, by virtue of a contract with the defendant with the express stipulation that, if not removed by them, it should become her property and, pursuant to that arrangement, she took possession of it. These facts are sufficient to support the action against her, even though there was no direct evidence of knowledge on her part that the wharf was erected without a license.

The plaintiff must show, in order to recover on the count for causing the death of his intestate, some evidence of culpable negligence on the part of the defendant. Littlejohn v. Fitchburg Railroad, 148 Mass. 478. Boott Mills v. Boston & Maine Railroad, 218 Mass. 582. But the maintenance of the wharf without a license, in violation of the terms of the statute, and thus constituting a public nuisance, afforded evidence of this nature. Bourne v. Whitman, 209 Mass. 155, 167. Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 496. Gately v. Taylor, 211 Mass. 60, 64. There was negligence on the part of the defendant in maintaining a public nuisance in tide water contrary to the express terms of a penal statute and dangerous in fact to those members of the public rightly navigating in the neighborhood. There was evidence tending to show lack of care in the state of weakness and want of repair into which the wharf had been suffered to fall, in violation of a legal duty, and that these factors had a causal connection with the injury to the plaintiff’s intestate. That was enough to constitute negligence. Bernabeo v. Kaulback, 226 Mass. 128, 131.

The evidence as to the conscious suffering of the intestate was this: She last was seen alive standing in the cockpit of the boat when it came in' contact with the wharf, and her body was found on the shore the next morning about one quarter of a mile distant from the wharf. The medical examiner made an examination, but performed no autopsy. He found drowning to be the cause of death. There was discoloration of one eye and a bruise on the head of adequate size and indicating a blow sufficiently severe to have caused unconsciousness, and, if unconsciousness were caused in that way, it probably would be instantaneous upon receiving the blow. So far as he could make out, there was no fracture of the skull. He made no examination of the lungs to determine whether there was water in them. A person comes to death by drowning in about two minutes, and unconsciousness would ensue in from one to two minutes. Under these circumstances there is nothing to indicate whether the blow on the head came before or after the fall into the water. Whether there was any conscious suffering or not was wholly a matter of surmise and conjecture. There was no evidence of such suffering. The burden rested bn the plaintiff to establish conscious suffering on the evidence. The case on this point is governed by Corcoran v. Boston & Albany Railroad, 133 Mass. 507, Riley v. Connecticut River Railroad, 135 Mass. 292, Mulchahey v. Washburn Car Wheel Co. 145 Mass. 281, and is distinguishable from Nourse v. Packard, 138 Mass. 307, Pierce v. Cunard Steamship Co. 153 Mass. 87, and Boutlier v. Malden, 226 Mass. 479, 487, 488.

A verdict should have been ordered for the defendant on the count for conscious suffering, and that entry may be made.

The other rulings of the Superior Court were correct. The cause is to be remanded to the Superior Court on the death count for final action on the motion for a new trial on the ground of excessive damages, this being in accordance with the terms of the report.

So ordered.