149 Mass. 410 | Mass. | 1889
The servants of the defendant, in constructing a sewer in Minot Street, uncovered a water pipe running to the greenhouse of the plaintiff. The jury have found that they were negligent in leaving it exposed for several days, in severely cold weather; that this caused the water in it to freeze, and thus cut off the supply of water of the plaintiff. While a city or town
The defendant contends that as in this case the water pipe belonged to the city, and it had a contract with the plaintiff for his supply of water, his only remedy for the loss of water was upon such contract. The fact that the water pipe belonged to the city is not material. It was in the use and so far in the possession of the plaintiff that, if a stranger unlawfully interfered with it, to the injury of the plaintiff, he could maintain an action of tort. Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277. We think that the fact that the city had a contract with the plaintiff to supply him with water does not take away his right to sue in tort, even if the rule of damages is the same as in an action upon the contract. A mere breach of contract cannot be sued on as a tort, but for tortious acts, independent of the contract, a man may be sued in tort, though one of the consequences is a breach of his contract. Ashley v. Root, 4 Allen, 504. Suppose a lessor, who has covenanted to keep the leased premises in repair, should tortiously fire a cannon near the premises, breaking the windows, and otherwise injuring them. It would not be an answer to an action of tort to set up that the plaintiff had an action on the covenants of the lease. He could pursue either remedy. In the case at bar, the tortious acts of the city had no connection with, or reference to, its contract. They were independent acts, which gave the plaintiff a right to an action of tort, even if he had (which we need not decide) a concurrent remedy upon his contract.
The defendant contends that the damages suffered by the plaintiff were too remote. The damages were caused because the plaintiff, after the water was cut off, was unable to furnish water to his plants, and to supply his boiler with water, so as to heat the greenhouse. In Derry v. Flitner, 118 Mass. 131, it is said: “ One who commits a tortious act is liable for any injury which is the natural and probable consequence of his misconduct. He is liable not only for those injuries which are
In the case at bar, the natural consequences of the tortious acts of the defendant in leaving the pipe exposed were that the water in it froze, the supply of the plaintiff was cut off, his means of furnishing water to the plants and heat to his boiler were destroyed, and his plants were killed. The jury have found that this happened without any negligence on the part of the plaintiff, as he could not, by the use of reasonable diligence, obtain a supply of water or heat from other sources. The case of Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277, is similar to the case before us. There the defendant negligently ran a train over a line of hose belonging to a third party, which the plaintiff was using to extinguish a fire in its factory. It was held that the severing of the hose was the proximate cause of the destruction of the building, and that the defendant was liable for its value. The instructions in this case were in accordance with the principles we have stated, and were correct.
Exceptions overruled.