212 Mass. 340 | Mass. | 1912
This is a bill in equity
The general rule as to the effect to be given to the findings of a master in relation to matters of fact where he has seen and heard the witnesses is too well settled to require an extended citation of authorities. Such findings will not be set aside or reversed unless they are plainly wrong. They have the weight and effect of a verdict by a jury. Atherton v. Emerson, 199 Mass. 199. Kyle v. Reynolds, 211 Mass. 110, 112.
The defendant’s contentions, as stated in his brief, are: “l. That the blasting carried on by the defendant did not cause the damage for which recovery is sought. 2. That the'damage was clearly the result of certain features of the construction of the house. 3. That the defendant was not negligent in carrying on the blasting.” These contentions all present questions of fact.
The defendant does not complain, as we understand him, of any error on the part of the master in regard to the principles of law governing the case. The defendant was bound to exercise reasonable care and skill in blasting out the tunnel, having due regard to the nature of the work and local conditions, and that was the rule which the master applied. Murphy v. Lowell, 128 Mass. 396. Booth v. Rome, Watertown & Ogdensburg Terminal Railroad, 140 N. Y. 267. The master found “that under all the circumstances . . . the respondent did not use reasonable care in blasting out the rock in the tunnel; that he did not have proper regard for the rights and property of the complainant; that he was controlled and actuated by a determination to handle the work as economically, profitably and speedily as possible for himself, without due regard for the rights of the complainant.” He also found “that the respondent, had ample
On almost all of the matters of fact involved the parties were widely at variance. The plaintiff contended and introduced evidence tending to show that her house was injured and her comfort disturbed by the blasting; that the house was jarred and caused to vibrate by the blasting operations; that the blasting was conducted in an unreasonable and improper manner and could have been modified without loss of efficiency in the work; and that the defendant had ample notice and warning of the damage that was being done but made no change in his method of tunnel-ling, but continued to employ the same methods. In addition it should be observed that the contract between the defendant and the sewerage board "required that the blasting shall be conducted with all possible care, so as to avoid injury to persons and property.” On the other hand the defendant contended and introduced evidence tending to show that there was no jar or vibration; that the damage to the plaintiff’s house was caused by shrinkage and the manner of its construction; that he used all the care and skill that reasonably could be required, having regard to due efficiency in carrying on the work; that he had no reason,to believe damage was being done to the plaintiff’s house; that he took all proper precautions; and that no change in the method of blasting was possible within proper engineering practice.
The issues thus raised related exclusively to matters of fact. Beside seeing and hearing the witnesses the master states in his
The argument addressed to us by the defendant in his brief relates almost wholly to matters of fact. It comes, it seems to us, in substance to the contention that the master should have believed his witnesses and should have adopted his views regarding the case rather than those of the plaintiff. But that was for the master to decide. We have carefully read and considered the printed report of the evidence. It not only cannot be said that the master’s findings were plainly wrong, especially when considered in connection with the view which he took, and with the advantage which he had of seeing the witnesses face to face, but they were, it seems to us, warranted by the evidence.
The result is that the decree must be affirmed, with costs of this •appeal.
So ordered.
Filed in the Superior Court on November 2, 1910. The master was Emery B. Gibbs, Esquire. The decree was made by Jenney, J.