Dolham v. Peterson

• Decision Date: 30 June 1937
• Citation: 297 Mass. 479,9 N.E.2d 406
• Parties: DOLHAM et ux. v. PETERSON. HENRICKSON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 479

9 N.E.2d 406

DOLHAM et ux.

v.PETERSON.

HENRICKSON

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

June 30, 1937.

Actions of tort by Clarence E. Dolham and his wife, and Jacob Henrickson against Albert E. Peterson. From a decision of the Appellate Division dismissing the report of the trial judge plaintiffs appeal.

Affirmed.Appeals from Appellate Division of Third District Court, Northern District; Maloney, Judge.

P. A. Guthrie, of Boston, for plaintiffs.

J. G. Brackett, of Boston, for defendant.

RUGG, Chief Justice.

These two actions of tort were tried together in a district court. The plaintiffs seek to recover damages alleged to have been caused to their respective houses by blasting operations negligently conducted upon land of the defendant in connection with the necessary removal of a ledge encountered in excavating a cellar for a house erected thereon by the defendant. Much of the evidence at the trial related to cracks in the plastering in the houses of the plaintiffs, some of which were conceded to be the result of settling and shrinkage and to have existed before the blasting was done. It was the contention of the plaintiffs that other cracks were caused by the vibration due to the blasting. There was evidence that the blasting on the land of the defendant was done by an independent contractor through a subcontractor. There was no evidence of any negligence in the way the blasting was done except so far as it might be inferred from the existence of alleged cracks after the blasting. There was undisputed testimony from the men who did the blasting as to the manner in which it was done, and from an expert to the effect that he attributed all the cracks which he had seen in examining the houses to settlement and shrinkage and not to vibration caused by the blasting. The trial judge took a view at the close of the evidence. He found that the blasting was done by experienced men under a permit granted after the filing of a bond under G.L.(Ter.Ed.) c. 148, § 19, and that they were not negligent in doing the blasting. The trial judge was unable to find that the additional cracks in the plastering of the plaintiffs' houses or any other damagethereto was caused by the blasting. The general finding was for the defendant in each action.

The plaintiffs in the first action made the following requests for rulings of law: ‘1. Upon all the evidence it appears that the plaintiffs were the owners of a certain dwelling house; that the defendant, in the erection of a building on a nearby lot, carried on blasting operations, by reason of which the dwelling house of the plaintiffs was damaged; that the defendant did not use due care in said blasting operations; that he gave no notice to the plaintiffs of his intention of carrying on said blasting operations; that he took no precautions to prevent injury to the plaintiffs' property; that he was notified that damage was being done to the property of the plaintiffs, but continued nevertheless with said operations, whereby the same damage resulted. The plaintiffs should recover’; ‘2. From the facts as set forth in paragraph 1, and relying upon same, the court should rule that the building was damaged during the construction work carried on in an adjoining lot, and the plaintiffs should recover’; ‘3. From the facts set forth in paragraph 1, it would appear in addition thereto that the ridge of rock was such that it required terrific blast to dislodge same, and the defendant was bound to exercise due care, so as not to materially injure the plaintiffs' dwelling’; and ‘4. The fact that a permit was granted to the defendant to use explosives does not confer on him a right to blast rock so as to injure the property of the plaintiffs.’ Like requests for rulings were made by the plaintiff in the second action. The trial judge granted the fourth request and refused the first, second and third requests as dealing with questions of fact rather than of law. The plaintiffs claiming to be aggrieved by ‘the rulings' and refusals to rule as requested, the trial judge ‘reported the same’ to the Appellate Division for determination. The report contains all the evidence material to the questions reported. The plaintiffs appealed from the decision of the Appellate Division dismissing the report.

On appeals like the present, findings of fact made on oral evidence are not reviewable. Engel v. Checker Taxi Co., 275 Mass. 471, 176 N.E. 179;Winchester v. Missin, 278 Mass. 427, 428, 180 N.E. 215;Mahoney v. Norcross, 284 Mass. 153, 187 N.E. 227. Such an appeal brings before this court for consideration only rulings of law made by the trial judge and reported by him to the Appellate Division and questions of law concerning the action of the Appellate Division thereon G.L.(Ter.Ed.) c. 231, §§ 108, 109. Woodman v. Haynes, 289 Mass. 114, 193 N.E. 570;Bresnick v. Heath (Mass.) 198 N.E. 175, 2299. The...