Goldman v. City of Boston, 274 Mass. 329

274 Mass. 329 | Mass. | 1931

Carroll, J.

The plaintiff seeks to recover for damage to his real estate caused in November, 1927, by the breaking of a water pipe belonging to the defendant.

The plaintiff testified that the cellar of his home was flooded by water coming from a water main. There was evidence that in November, 1927, a break was discovered in the pipe, triangular in shape, three feet wide at the bell end of the pipe and “running from that width down to nothing ”; that the pipe was laid in 1898; that in 1911 a break occurred in the same section of the pipe, one thousand feet distant from the break of 1927; that the part of the pipe broken in 1911 was laid on a rock, “which would produce a break that would not occur in gravelly-soil ”; that the section of the pipe broken in 1927 was laid in good gravel soil; and that a pipe resting on a rock will break at the resting point.

The defendant asked for the ruling that there was no evidence of negligence. The trial judge refused this request and found for the plaintiff. In the Appellate Division judgment was entered for the defendant; the plaintiff appealed.

It was essential for the plaintiff to recover that some negligence on the part of the defendant should be shown in the laying of the water main or in its care and maintenance. Nothing appears to show the ordinary life of the pipe, or the frost levels in the vicinity. In fact there was no evidence of negligence. No inference indicating negligence of the defendant can be drawn from the break. of 1911: that break, it could have been found, happened because the pipe rested on a rock. The soil where the break in question happened was gravel.

The doctrine of res ipso loquitur is not applicable. The water main may have settled and cracked from other causes than the defendant’s negligence in laying the pipe or in caring for it. The act itself is evidence of negligence “when the direct cause of the accident, and so much of the surrounding circumstances as was essential to its occurrence, were within the sole control and management of the defendants, or their servants, so that it is not unfair to attribute to them a prima facie responsibility for what happened.” Wing v. London General Omnibus Co. [1909] 2 K. B. 652, 663, quoted in Reardon v. Boston Elevated Railway, 247 Mass. 124, 126. Washburn v. R. F. Owens Co. 252 Mass. 47, 54. Scott v. London & St. Katherine Docks Co. 3 H. & C. 596. In Smith v. Boston Gas Light Co. 129 Mass. 318, there was evidence that the pipes were not laid with sufficient care or made of proper material to withstand the action of frost. See Thompson v. Cambridge Cas Light Co. 201 Mass. 77; Bernier v. Pittsfield Coal Gas Co. 257 Mass. 188.

The cases cited by the plaintiff are not in conflict. The order directing judgment for the defendant is

Affirmed.