Breuck v. City of Holyoke

• Citation: 45 N.E. 732,167 Mass. 258
• Parties: BREUCK v. CITY OF HOLYOKE.
• Decision Date: 07 January 1897
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 258

45 N.E. 732

BREUCK v. CITY OF HOLYOKE.

Supreme Judicial Court of Massachusetts, Hampden.

January 7, 1897

COUNSEL

A.L. Green, for plaintiff.

Arthur B. Chapin, City Sol., and E.W. Chapin, for defendant.

OPINION

BARKER J.

The writ is dated August 3, 1895, and the trial was in March 1896. The declaration had three counts. The first alleged that the defendant negligently failed to keep a sewer in repair whereby the plaintiff, who was in the exercise of due care suffered injury to his property; the second, that the sewer was negligently suffered by the defendant to be out of repair, whereby the plaintiff's real estate was damaged, he being in the exercise of due care; and the third count, that the defendant ought to have built the sewer upon such a plan and in such a manner as was suitable to carry off the sewage, but negligently failed to do so, and, instead, built the sewer of insufficient capacity, and of such a plan and in such a manner as to be insufficient to carry off the sewage, which forced the sewage back into the plaintiff's buildings, whereby they were undermined and injured, he being in the exercise of due care. The defendant's answer was a general denial. The case was tried before a jury in the superior court, and, after verdict, was reported by the presiding justice for the determination of this court. The report, after reciting a few facts as to which we assume there was no dispute, states that the jury took a view, and that material evidence was introduced by both parties, and then recites the testimony of five witnesses called by the plaintiff, and of three called by the defendant, as all that is material to the issue. The report there states that, after this evidence was in, the defendant asked the court to rule that the plaintiff could not recover, and further offered in evidence certain city ordinances for the purpose of showing that the plaintiff was not legally connected with the sewer, and for any other purpose for which they might be competent. The plaintiff objected to the admission of this line of defense, because it was not specifically set out in the answer. The presiding justice excluded evidence of the ordinances, and required the jury to find whether a want of due care on the part of the plaintiff contributed to the overflow into his cellars, and whether the want of due care by the defendant in the construction or maintenance of its sewer was the sole cause of the overflow, and the amount of damage, if any, which the plaintiff suffered in his property as the direct result of the overflow. The jury then found that the plaintiff's injury came in no wise from his neglect, but did result from the negligence of the defendant, and that the plaintiff's damages were $700. After these special findings, the court admitted in evidence the city ordinances, and directed a verdict for the defendant, to which the plaintiff excepted, with the agreement that the case should be reported to this court, and that if, under all the evidence, the plaintiff was entitled to have his case submitted to the jury, the verdict should be for him for $700, and that otherwise the verdict for the defendant should stand. The question for our decision is, therefore, whether there is any view of the whole evidence upon which the plaintiff was entitled to have the case submitted to the jury.

Upon an examination of the reported evidence, we are of opinion that the plaintiff was not entitled to have the case submitted to the jury. Upon his land, at the corner of Jackson and Summer streets, the plaintiff had built two brick tenement houses. The one upon the corner of the lot upon the two streets was built in the year 1881, and the other, on Jackson street, and in the rear of the first, was built in 1887. Running from Jackson street behind the rear block was an alleyway. In the front block, besides apartments for dwellings, there was also a shop. In Jackson street was a city sewer, built between the years 1876 and 1880, designed to collect and transmit to the river both ordinary sewage and the surface water, the sewage being admitted by house connections, and the surface water by catch-basins placed in the streets. As originally built, this sewer descended Jackson street, past the plaintiff's blocks, crossed Summer street, following Jackson street to Canal street, and turning to the left at the corner of Jackson and Canal streets, was continued down Canal street past the foot of Adams street and of Sargent street, which were streets parallel with Jackson street, to a point in Canal street opposite the overflow of the Holyoke Water-Power Company's third-level canal, where the sewer turned to the right, and was led into the river under the overflow. In Canal street there was a well hole in the sewer between Jackson and Adams streets. In Jackson street and in Canal street, to the well hole, this sewer was of brick, 26 inches high, and about 20 inches wide. From the well hole, to its lower end, at the river, it was of iron, 5 feet in diameter; and this part of the sewer served as the discharge of another sewer in Adams street. In July, 1888, a tubular iron conduit was put in at the well hole in Canal street, leading under the bottom of the third-level canal, which runs next to and parallel with Canal street, and at right angles to the course of the canal, and a sewer leading directly to the river was built from the lower end of the conduit. In that year the Jackson street sewer was cut off from its original outlet, and made to discharge into the conduit built under the canal. In June, 1893, this conduit caved in or collapsed, and became obstructed by sand, which came into it from the adjacent soil, through openings in the tube thus caused, and it remained thus obstructed until it was replaced by another iron tube, in July, 1895. During the work of replacement, which lasted for 10 or 12 days, the Jackson street sewer was cut off from that outlet, and was inadequately discharged through its old outlet. The Holyoke Water-Power Company empties its canals yearly during the first week in July, to allow work to be done in and about them, and keeps the canals...