A. Da Prato Co. v. City of Boston
| Decision Date | 11 May 1956 |
| Citation | 334 Mass. 186,134 N.E.2d 438 |
| Parties | A. DA PRATO COMPANY v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Harry J. Williams, Boston (Patrick F. Murphy, Boston, with him), for plaintiff.
Joseph Graglia, Asst. Corp. Counsel, Dorcester, for defendant.
Before QUA, C. J., and WILKINS, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
This is an action to recover for damage to property caused by the negligence of the city 'in the construction, maintenance, inspection and repair' of its water system. The plaintiff occupied the basement of premises at 33-35 South Eden Street in the Charlestown district for the storage of plaster of paris statutory and molds used in its manufacture. The rear of the building abutted on Tibbett's Town Way, a street eighty-five to ninety feet in length and paved with cobblestones. Running lengthwise in the street at a depth of about six feet was a six-inch cast iron low service water main with 'shut-off' at each end of the street. The main had been laid in 1892.
There was evidence that at about 1 P.M. on Saturday, February 7, 1948, a police officer of the city observed evidence of a leak in the main opposite the rear of the plaintiff's premises. Water covered the roadway from curb to curb to a depth of four inches but did not extend as high as the tops of the curbs. The officer telephoned his police station and the clerk on duty there telephoned to the Charlestown yard of the water department on Rutherford Avenue. An unidentified person answered the call and said, 'Nobody here, but we'll take care of it.' It appeared that the yard was not then open so far as the water department was concerned but was being used by other departments of the city. Records of the water department disclosed that one Mickiewicz, now deceased, who at the time was acting foreman of the Charlestown yard, learned of the break when he went home at 7 P.M. on the same night. He investigated and found water coming up on the roadway of Tibbett's Town Way. He was unable to gain entrance to the plaintiff's building and at that time did nothing further. His duties required him to be on call twenty-four hours a day, seven days a week, and emergency crews were available at the Albany Street yard of the department whose duty it was to investigate leaks and complaints and to control the flow of water. On the following morning Mickiewicz located one DaPrato, then vice-president of the plaintiff company who lived in Belmont, and with him entered the building at some time after 10 A.M. There was three feet of water in the basement. Emergency service was called and the main was shut off at 11:45 A.M. Excavation of the street showed that there was a 'circumferential' crack in the main extending all around the pipe. It was repaired by attaching a sleeve to the pipe. When the main was shut off, the water in the basement receded. Following the introduction of evidence as to the cost of repairing the damage to the statuary and the molds, the judge directed a verdict for the defendant and the plaintiff excepted.
A municipality in supplying water at a price is not performing a governmental function but is engaging in trade and is liable for its...
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