Burnside v. Town of Everett
| Decision Date | 20 May 1904 |
| Citation | 186 Mass. 4,71 N.E. 82 |
| Parties | BURNSIDE v. TOWN OF EVERETT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Moses
Holbook and M. Summer Holbrook, for plaintiff.
Walter S. Thompson, City Sol., for defendant.
This is an action of tort for injuries sustained by the plaintiff caused by the overflow of a sewer through a connecting drain into the plaintiff's cellar. At the trial in the superior court the jury returned a verdict for the defendant, and the only exceptions relate to questions of evidence. It appeared in evidence that the injury was done on the night of February 28, 1902, when there was a very heavy rainfall, lasting four hours, amounting to 78/100 of an inch per hour; that the sewer connected with the Metropolitan sewer, and had an overflow pipe 24 inches in diameter and 50 feet long, at the end of which was a gate, which opened into Island End river; that at the end of this pipe was a gate hung on hinges, which kept the tide out when high, and let the sewage out when the tide was low; that the tide was low at the time of the storm; and that the hinges of the gate were apt to become rusty, and not work freely. It further appeared that the gate was inspected from time to time, and filed and oiled.
1. The first exception relates to the exclusion of an offer of proof, on cross-examination of one Doyle, a foreman of the Everett sewer department, and who had charge of inspecting the gates of the overflow pipes. The plaintiff offered to prove by this witness that there had been an overflow two years before the one in question, with the same system of sewerage, for the purpose of proving notice to the defendant that such an accident was apt to happen, and also for the purpose of testing the witness on cross-examination. We are of opinion that the evidence was not admissible on either ground. A city is liable for not keeping its sewer in order, provided there is no want of due care on the part of the plaintiff, as in Stead v. Worcester, 150 Mass. 241, 22 N.E. 893; Child v. Boston, 4 Allen, 41, 81 Am. Dec. 6. The gist of the action is negligence. There could have been no difficulty in this case in showing the condition of the sewer and of the gate when the damage was done; and the judge, in the exercise of his discretion, might well have excluded evidence of what happened two years before on the ground that it was too remote. See Gilbert v. West End Street Railway, 160 Mass. 403, 36 N.E. 60. The evidence offered was as to a collateral fact which would furnish no legal presumption as to the facts in dispute, and which the defendant was not bound to be prepared to meet. Collins v. Dorchester, 6 Cush. 396; Marvin v. New Bedford, 158 Mass. 464, 467, 33 N.E. 605. The extent to which a witness may be questioned on cross-examination as to collateral matters for the purpose of testing his accuracy, his understanding, etc., must rest largely in the discretion of the presiding judge. In the present case we see no error of law in excluding the evidence.
2. The second exception relates to the following question put by the defendant to one Harrison, the city engineer of the defendant 'Assuming the rainfall to be in the nature as testified to by Mr. Smith, and as former witnesses testified, and assuming the gate in the Metropolitan to be closed, if the tida gate in the overflow was closed at that time, what, in your opinion, would happen to the system?' The witness answered that the sewer would overflow, as, in his opinion, it was not of...
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