316 Mass. 234 | Mass. | 1944
This is an appeal from an order sustaining the defendant’s demurrer to the plaintiff’s declaration. The allegations of the declaration are, in substance, that on July 14, 1937, and for a long time prior thereto, the plaintiff was the owner of a mushroom plant located on Washington Street in Groveland; that at that time, and for a long time prior thereto, the defendant maintained a pole on that street a short distance from his plant; that the defendant was obliged by law to use strong and sufficient poles; that the pole involved was not such but was weak and defective, which defect the defendant knew of, or with the exercise of reasonable diligence could have determined; that said pole being in a weakened and defective condition fell on July 14, 1937, by reason of the defendant’s negligence in maintaining said pole, and carried away with it a power line which ran to the plaintiff’s plant a short distance from said pole, with the result that the electrical apparatus used by the plaintiff in the growing of mushrooms was disabled, causing the temperature to rise; and that in consequence of the heat, a crop of mushrooms was killed, “all to his great damage as alleged in his writ.”
The grounds of demurrer are as follows: “1. The declaration does not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action in tort against this defendant. 2. The matters contained in the declaration are insufficient in law to enable the plaintiff to maintain an action of tort against this defendant. 3. The declaration does not state a cause of action in tort , substantially in accordance with the rules contained in G. L. (Ter. Ed.) c. 231, and amendments thereof and additions thereto, and in particular in cl. 2d of Section 7, thereof.” The demurrer was sustained generally.
The defendant argues that the declaration does not concisely and with substantial certainty state the substantive
While it is settled that, if the defendant owed no duty of care to the plaintiff upon the facts alleged as argued by the defendant, there could be no actionable negligence on its part, Theriault v. Pierce, 307 Mass. 532, 533; Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156, yet it is also settled that the possibility of harm to a class of which a plaintiff is one raises a duty to abstain from conduct from which harm may result, and that, if a defendant is guilty of negligent conduct, he is liable for any injury which proximately results to the person or property of another, whether he might or might not have anticipated reasonably the particular manner and direction in which it is actually communicated. Higgins v. Dewey, 107 Mass. 494, 496, and cases cited. Gates v. Boston & Maine Railroad, 255 Mass. 297, 302. Herrick v. Springfield, 288 Mass. 212.
It is unnecessary to consider the effect of G. L. (Ter. Ed.) c. 166, § 30, relative, in part, to maintaining strong and sufficient supports for “a line of wires over . . . streets.” The plaintiff's declaration contains no express reference to any statute. On its face it is a common law declaration in tort for negligence and at common law “Whenever a man
The allegation in the declaration that in falling by reason of its weakened and defective condition the defendant’s pole carried away with it a power line to the plaintiff’s mushroom plant and the recital of the consequent damage to his property are sufficient. The plaintiff was not called upon to set up in express terms by what authority or contractual relationship the electric current was being supplied to his property, or (if it were so) that the cable was attached to the defendant’s pole. There is no allegation in the declaration to show any intervening cause, and the defendant would be hable for its alleged negligence, as before stated, whether it might or might not have anticipated the particular manner or direction in which the harm to the plaintiff was alleged to have been actually communicated. It cannot be said rightly that the plaintiff would have no cause of action against the defendant because he derived his right to the use of the electric current from others. The use was in the plaintiff, and if the defendant “& stranger unlawfully interfered with it, to the injury of the plaintiff, he could maintain an action.” Stock v. Boston, 149 Mass. 410, 414. Derry v. Flitner, 118 Mass. 131, 134. Bickford v. Richards, 154 Mass. 163. Kiernan v. Metropolitan Construction Co. 170 Mass. 378. Hebbard v. McDonough, 245 Mass. 204. The allegations of the declaration are sufficient to show that the damage alleged to have been sustained by the
The order sustaining the demurrer is reversed and instead an order is to be entered overruling the demurrer.
>So ordered.