Devine v. Lyman
| Decision Date | 31 January 1930 |
| Citation | 169 N.E. 908,270 Mass. 246 |
| Parties | DEVINE v. LYMAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Appellate Division of District Court of Holyoke.
Action by Grace Cahill Devine against Edson L. Lyman and others, in which there was a finding for plaintiff. On report. Order of Appellate Division affirmed.John S. Begley, of Holyoke, for plaintiff.
John H. Madden, of Springfield, for defendant.
The plaintiff seeks to recover damages caused by water from an alleged defective pipe, which she contends it was the duty of the defendants to keep in repair. The trial judge found for the plaintiff and reported the case to this court. The report contains all the evidence material to the questions of law presented.
The plaintiff occupies as a tenant at will a store on the ground floor of a building owned by the defendants, and has occupied the same premises since the erection of the building about eighteen years ago. There was evidence tending to show the following facts: A drain pipe for the purpose of carrying water from the roof of the building into the sewer enters the store of the plaintiff near the ceiling, then makes a sharp turn in the form of an elbow, and, after running horizontally for a short distance connects with the sewer pipe. In the elbow of the drain pipe was a metal plug which was put there when the building was erected. The plug was so placed that it might be removed and the pipe cleaned. There was a metal thread on the plug and a similar thread on the pipe. On August 5, 1928, the defendant Lyman noticed water in the plaintiff's store, and, believing that it came in through an open window, called her by telephone. The plaintiff found that the plug had ‘blown out’ and that water was running from the pipe into the store. A wooden plug was then driven into the place where the metal plug had been to stop the flow of water, and remained there until a new metal plug was placed in the pipe. The plug showed that the threads on it and the threads on the pipe were rusted and worn. As a result of the plug becoming detached water collected on the floor of the plaintiff's store to a depth of about five inches. It appeared that in the preceding July the plaintiff had discovered water dripping from the pipe and notified an agent of the defendants who caused their janitor to examine the pipe; he found that water was dripping therefrom and placed a pail below the metal plug; he testified that in his opinion the water was due to sweating of the pipe. The drain pipe had been installed in the building when it was constructed, about eighteen years before the metal plug became detached on August 5. During that time nothing had been done to the pipe or to the plug by any one. There was no evidence of any inspection of the pipe during this entire period other than at the time the janitor was called.
The trial judge found that the pipe...
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