348 Mass. 274 | Mass. | 1964
These are the defendant’s exceptions in an action to recover for damage caused by the flooding of
The frost bottom is designed to give way under the pressure of freezing water and thus to avoid injury to the working parts of the meter. It is a disc the upper part of which is fitted (cast?) into the bottom of a heavy ring casting that forms the base of and is bolted to the upper casing of the meter. The base of the frost bottom, of greater diameter than its upper part, overlaps the exterior of the ring casting. Although the meter with detached frost bottom was in evidence and is before us, neither the exhibit nor the testimony discloses just how the perimeter of the upper part of the disc was engaged with the ring casting that surrounds it.
The plaintiff disclaims reliance on the doctrine of res ipsa loquitur or inferred negligence and contends that all the evidence, as well as the subsidiary findings of the auditor alone, warranted the conclusion that the defendant was negligent in supplying a meter with an old used frost bottom incorporated therein.
1. The evidence taken at the trial pointed to the conclusion that the cause of the break was a weakening of the metal of the frost bottom due to graphitization so that it was unable to withstand pressure surges or water hammerings caused by the sudden opening or closing of outlets in the main or in the plant line. Graphitization, according to an expert witness for the defendant, is a change and weakening in the structure of the metal “caused by electrical currents set up by dissimilar components of the metal. ’ ’ It is a “chemically induced” phenomenon which is not detectable by visual examination or by any method employed by municipalities. The presence of electric current would hasten the process. Alternatively, the part could have been weakened by metal fatigue — a mechanical effect, resulting from stresses and strains in the course of use; but the only direct testimony was that testing did not show metal fatigue.
The conclusion was plainly warranted that graphitization was more likely to be present in an old used part than in a new one. The attention of the experts was not directed expressly to an old part that had not been in use, but on this record we think it could also be found that this chemical de
The evidence permitted the inference that the broken frost bottom was made prior to about 1944-1945 at which time the manufacturer changed its specification “for thickness of frost bottoms . . . from .125 to .188 inches.” An expert witness for the plaintiff testified that the thickness of the metal at the bottom of the groove of the broken bottom was .0712 inches; this “represented 57 per cent of the old [pre-1944 specification of] 0.125 . . . [and] 38 per cent of the 0.188 post-1945 . . . [specification] for the frost bottom thickness.” The parties in their briefs have assumed, as did the witness, that the measurements in each case are at the same place so as to be comparable. There was testimony of tolerable variances in thickness from piece to piece.
There was testimony that the meter was guaranteed for a pressure of 150 pounds. It could have been concluded that due care called for testing the meter after it was rebuilt, and that the meter was tested at the defendant’s workshop where the pressure was not over 135 pounds “unless there are fluctuations. ’ ’ There was no means of testing for higher pressures. The pressure at the plaintiff’s plant except for surges was not over 135-136 pounds but with a hammer the pressure there could go up to 180 pounds, and hammers there and elsewhere are not unusual.
There were electrical ground wires attached to the water pipes near the meter, one about six inches from the meter “next to the wall” and the other about fifteen feet from it. The employee who installed the meter knew of these wires
A witness for the defendant, an expert on municipal water systems and hydraulic engineering, who had advised many communities on their water systems and has “been connected with the Athol Water Department since 1949,” testified that the giving way of meter bottoms for causes other than freezing is rare, and that he had “never run into a condition where a new frost bottom gave out in six weeks from graphitization. ” “ [H]e ha [d] no evidence . . . that the plaintiff caused graphitization in the system; . . . [it] could be hastened by electrical input ... by ground wires but . . . there could be many things which could affect it.”
The plaintiff’s expert testified that the difference “between the .0712 thickness of the broken frost bottom and the .188 or .125 manufacturer’s frost bottom specifications would be a significant factor in bringing about the break.” A witness for the defendant testified that variation from the manufacturer’s specification would have to be over fifty per cent to be important. Even with such a difference a “Hersey meter should be able to withstand a pressure of 450 pounds minimum. ’ ’
A metallurgist, called by the defendant, testified that he had found graphitization in the part, that the presence of an electric current passing through the meter would “tremendously accelerate” the process, and that the presence near the meter of two grounds from electric motors would accelerate it. His opinion of the cause of the failure was “graphitization . . . caused by electrical currents.”
A development engineer in the employ of the manufacturer of the meter testified to the effect that it would be careless not to replace a frost bottom that showed some rust and corrosion and was known to be twenty-two per cent thinner than specification and was to be subjected to pressure of from 135 to 140 pounds. It is a rule of the manufacturer when rebuilding a meter to replace the frost
It was undisputed that the defendant kept no records of meters and parts and what was done to them, a practice that, according to the testimony, was regarded as of high importance both by the manufacturer of the meter and by the defendant’s expert on municipal water systems.
There was testimony tending to show that the practice of the defendant in rebuilding meters, assuming an unused bottom was installed, was in accordance with good practice for municipal water departments, except in respect of the absence of records, also that it is not customary for municipalities to take pressure tests with gauges before installing water meters, and that the steps taken by the town to install the meter were usual and proper. The development engineer testified that it was perfectly proper to use meters made before the change in the specification for thickness of frost bottoms. The thickness of the frost bottom was determined by the plaintiff’s witness with a micrometer and it is not customary for municipal departments to have a micrometer. Calipers also could be used for such measuring.
There was also testimony that the meter was installed to replace a smaller meter when the plaintiff installed air conditioning. The auditor found that the defendant knew the purpose of the installation.
The plaintiff contends that it could have been inferred that the great deficiency in thickness of the frost bottom was due to wearing away from long use and abuse elsewhere, suggesting that this is a more reasonable inference than that the manufacturer had supplied a bottom so far below its specifications.
The inner surface of the disc is somewhat pitted but not deeply so and has a surface coating of rust on a part of it. An expert for the defendant called attention to “the origi
An employee of the defendant testified that in rebuilding this meter he used a new bottom “from their stock on hand” in accordance with practice. This contrasts with the auditor’s finding that although another bottom was put on when the meter was rebuilt the employees of the defendant did not know whether it was new or used.
The plaintiff reminds us that the judge’s findings “must stand unless they are unwarranted by any reasonable view of the evidence together with all rational inferences that may be drawn therefrom. His general finding is conclusive if there is any evidence to support it.” Kellogg v. Suher, 329 Mass. 544, 546. And, of course, the judge could disbelieve any part of the testimony.
Under these rules, we think that the judge, on some view of the evidence and within the limits of reasonableness, could have concluded that the defendant was negligent. True, the appearance of the frost bottom and most of the testimony about it tended strongly to show that the part had been in use over only a short period and to corroborate the testimony that a new frost bottom was used. It did not, however, require the judge so to find. This testimony did not make entirely insignificant either the extraordinary deficiency in thickness not accounted for by probable tolerance in manufacture or the auditor’s finding that the em
We rule that the judge could have concluded that the defendant should have known the age of the frost bottom and whether it had had prior use and, in accordance with its own practice, and good practice, should have rejected the part if it had had any prior use. The judge could also have found that the defendant, not knowing the age of the part and whether it had had prior use should have rejected it, either out of hand, or in any event after inspecting and measuring it and finding that its critical thickness was sixty-two per cent under current specification. A test under the foreseeable pressure at the plaintiff’s plant could also have been found a requirement of due care, but it is speculative whether such a test would have shown the latent weakness of the part. Such cautionary steps may be required before using from stock a frost bottom of uncertain history even though, as the testimony suggested, good practice permits the continued use of old, long installed meters.
Great Atl. & Pac. Tea Co. v. Kennebec Water Dist. 140 Maine, 166, relied on by the defendant, also involved the failure of a frost bottom from a cause other than freezing. There, however, the meter had been rebuilt by the manufacturer. The court, finding that no amount of inspection by the defendant would have shown the defect, held that the doctrine of res ipsa loquitur was inapplicable, and ruled that the plaintiff had failed to make out a case.
2. The possibility of a sustainable finding for the plaintiff does not, however, dispose of this case, for the judge’s ruling on the motion to strike the conclusion of negligence from the auditor’s report establishes that the judge may have acted on evidence and inferences inadequate to show negligence.
The auditor’s conclusion of negligence was not warranted on the subsidiary facts found by him. The auditor’s report is scanty. It described the frost bottom as so constructed “that a thin circular line was built in it which would give way or break when frozen.” The break “was not a clean break” and there was evidence of rust and corrosion. Tests “showed a thickness of twenty-two per cent less than the thickness of a new ‘frost bottom’ of the same type.” But there was no finding, other than of the break itself, to suggest that these factors were related to the break or, if so, that they indicated anything about the bottom when installed to tell the defendant that it should not have used the part. Other findings do not show negligence related to the break.
3. It is unnecessary to deal with the other contentions of error.
Exceptions sustained.
The diameter of the upper part of the broken frost bottom measures about four and three-quarters inches. The diameter of the base ring easting into which it fitted is about five inches. The record does not disclose what happened to whatever filled the space between disc and casting, but it can perhaps
‘ ‘ [A] difference of 22 per cent less thickness in ■ the frost bottom that broke compared to another frost bottom would not be significant.”
The auditor found that water was furnished by the defendant to the plaintiff’s plant at a pressure of from 135 to 150 pounds per square inch and that the “meter was installed to withstand this pressure.” The meter was installed in late July or August, 1960, and was thirty to thirty-five years old, and had been used where the pressure was considerably less than at the plaintiff’s plant. This finding was based on mistaken testimony, corrected at the trial. The report stated that witnesses testified that another frost bottom was put on when the meter was rebuilt and that it was tested under the pressure at the Athol Water Works which was some 125 pounds per square inch. The auditor further found that the defendant kept no adequate records of repairs to and replacements in meters, and no record of the repairs on this meter. Also that the defendant's employees did not know whether the frost bottom was new or a used replacement. The night of September 2-3, 1960, when the meter broke was clear and warm. There was no evidence of freezing. The plaintiff had installed reducing valves within the building to keep down fluctuating water pressure or hammering. The defendant had not installed such valves outside the building although ‘ ‘ this is not uncommon in the municipality.” However, “it is not customary with towns to install reduction valves in their pressure systems.” After the break a hydraulic engineer conducted tests that showed variations in pressure from five to fifteen pounds and hammering as often as fifty times an hour. The fluctuations occurred from pressure outside the building.