Bratton v. Rudnick

• Decision Date: 03 July 1933
• Citation: 283 Mass. 556,186 N.E. 669
• Parties: BRATTON v. RUDNICK. TALLMADGE v. SAME. WRIGHT v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 556

186 N.E. 669

BRATTON

v.RUDNICK.

TALLMADGE

v.SAME.

WRIGHT

v.SAME.

Supreme Judicial Court of Massachusetts, Berkshire.

July 3, 1933.

Exceptions from Superior Court, Berkshire County; Fosdick, Judge.

Actions by Arthur G. Bratton, by Lillian Tallmadge, and by Fannie Wright against Morris Rudnick. Judgment for defendant in each case, and plaintiffs bring exceptions.

Exceptions overruled.E. D. Getman and W. A. O'Hearn, both of North Adams, for plaintiffs.

C. H. Wright, of Pittsfield, and B. F. Evarts, of Holyoke, for defendant.

RUGG, Chief Justice.

These actions of tort are brought to recover compensation for damages to property alleged to have arisen because the defendant, owner of a dam, bulkhead, headgate, and underground sluiceway across Green River in Williamstown with the right to maintain the same and their appurtenances to conduct the impounded waters to a mill owned by him, in fact maintained them in a defective condition with the result that they gave way, and the escaping waters caused damages to the property of the several plaintiffs. Each declaration contained two counts, the first founded upon negligence of the defendant and the second on the theory that the defendant as owner of the dam built to confine the waters of the river for his own uses owed to the plaintiff the duty to maintain his dam in a proper and safe condition so as to prevent the escape of such waters to the harm of the plaintiff.

The cases were refered to an auditor, whose findings of fact were to be final. The cases were then heard upon motions for favorable judgment by each of the several parties. Requests for rulings were presented and passed upon subject to exception. Judgment was ordered for the defendant in each case. The questions presented are whether there was reversible error of law in dealing with the requests for rulings and whether the orders for judgment can be supported on the findings of facts made by the auditor. The general finding in favor of the defendant imports the drawing of all reasonable inferences to uphold that conclusion of which the findings of fact are susceptible. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152, 181 N. E. 219;Ballou v. Fitzpatrick, 281 Mass. --, 186 N. E. 668;Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 521, 522, 117 N. E. 924; Rule 88 of Superior Court (1932).

The findings of fact set forth in the auditor's report in brief are that Green River is about eight miles in length, flows through a country most of which is hilly and some of which is mountainous, in places is swiftly flowing and is of such nature that it rises rapidly during a freshet. The dam of the defendant is ninety-seven feet in length and is constructed across a ledgy gorge. About one hundred yards above the dam of the defendant there is another dam across the river. Adjacent to the dam of the defendant was a bulkhead ‘constructed of 8 x 8 timbers' mortised together and about eighteen feet square. At its entrance was a rack designed to keep out leaves, sticks and other débris which otherwise might flow into the headgate and sluiceway. About in the middle of the bulkhead was the headgate four feet high and five feet wide, covering the entrance to the sluiceway, which was two feet high and five feet wide and through which when the headgate was raised the water passed to the mill several hundred feet below, where it furnished power for the operation of the mill. On the night of November 4, 1927, as the result of a storm which had continued about two days beginning on November 2, 1927, the waters of Green River broke through the bulkhead adjacent to the dam of the defendant thereby causing damages to the plaintiffs. The total rainfall during this storm was more than six inches and ‘was substantially larger than that in any other storm referred to in the evidence; in fact its volume was fully twice as great as that in any other rain regarding which a record was produced, or any witness testified from recollection. The storm might properly be described as extraordinary and unprecedented.’ It was ‘so notoriously great as properly to be characterized as phenomenal,’ and ‘was such that human foresight could not reasonably be expected to anticipate.’ The water rose to so great height that it flowed in substantial volume over the entire length of the spillway of the defendant's dam. Some of this water reached the earth back of the bulkhead and undermined and weakened it so that it gave way, although the dam itself stood firm. The ultimate conclusions of the auditor were these: Even if the headgate (which was closed) had been open and the sluiceway in good repair, the pressure of the water at the bulkhead would have been relieved to so slight an extent that the damage would not have been prevented. The defendant was negligent in the maintenance of the headgate and planking. If there had been no such negligence, although the injury to the plaintiffs might have been somewhat retarded, it would nevertheless have ensued owing to the prevailing flood conditions. The plaintiffs did not sustain the burden of proving that this negligence was a contributing cause of their damage.

The finding that the negligence of the defendant was in no way a contributing cause to the damage of the several plaintiffs is decisive that there can be no recovery on the first count in each of the declarations. Negligence which does not actually cause or contribute to injury cannot be the basis of liability. Such negligence has no causal connection with the harm to the plaintiff, and is immaterial on the question of responsibility for damages. If subsequently to the negligence of the defendant there intervenes another proximate active and efficient cause operating independently to produce injury to the plaintiff, there can be no recovery from the defendant. Gordon v. Bedard, 265 Mass. 408, 412, 164 N. E. 374;Smith v. Locke Coal Co., 265 Mass. 524, 527, 164 N. E. 381, 61 A. L. R. 1052;O'Connor v. Hickey, 268 Mass. 454, 459, 167 N. E. 746;Falk v. Finkelman, 268 Mass. 524, 527, 168 N. E. 89;Fielding v. S. Z. Poli Realty Co., 274 Mass. 20, 22, 174 N. E. 178;Wright v. Woodward, 79 N. H. 474, 479, 111 A. 494.

It follows that the first and third requests for rulings by the defendant, to the effect that on the auditor's report the plaintiffs could not recover on the first count in their declarations and that judgment should be entered in his favor, were granted rightly.

The plaintiffs base their contention of right to recover on the second counts of their declarations on the principle enunciated with respect to a defendant who had built and maintained a reservoir in Fletcher v. Rylands, L. R. 1 Ex. 265, 279, affirmed in Rylands v. Fletcher, L. R. 3 H. L. 330, 339, 340, in these words: ‘the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’ There have been limitations upon the wide sweep of that principle by the English courts. See Attorney General v. Corke, [1933] 1 Ch. D. 89. That principle has been examined and cited in numerous instances in our decisions. It was discussed with his usual clearness, wisdom and learning by Justice Knowlton, speaking for the court, in Ainsworth v. Lakin, 180 Mass. 397, 62 N. E. 746,57 L. R. A. 132, 91 Am. St. Rep. 314. That principle, so far as it has been adopted and was relevant, was applied in Kaufman v. Boston Dye House, Inc., 280 Mass. 161, 182 N. E. 297, decided within a few months, with review of the English cases and our own adjudications. It is not now necessary again to go over the same ground. The rule there deduced in substance was that in general where one for his own purposes makes an unusual and extraordinary use of his land, in reference to the benefits to be derived therefrom by himself and the damages or losses to which others are thereby exposed, by bringing, collecting or keeping upon it anything possessed of a tendency, according to the reasonable anticipations of mankind with respect to such a hazard, to escape and do great damage, he is bound at his peril to confine and restrain it to his own premises and is liable to actions for injuries resulting as a natural consequence from his failure of duty in this particular. In discussing the scope of the general principle in the opinion in Gorham v. Gross, 125 Mass. 232, at page 238,28 Am. Rep. 224, it was said by Chief Justice Gray that recognized exceptions to the liability imposed by the rule of ...