Gibney v. Everson

• Decision Date: 19 June 1906
• Citation: 77 N.E. 1155,192 Mass. 228
• Parties: GIBNEY v. EVERSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 228

77 N.E. 1155

GIBNEY v. EVERSON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

June 19, 1906

COUNSEL

Thomas E. Grover and Ira C. Hersey, for plaintiff.

J. W Keith and E. D. Sibley, for defendants.

OPINION

LATHROP J.

This is an action of tort in three counts. The first count is for negligently and unskillfully blasting in the work of constructing a sewer in the town of Hyde Park, whereby injury was done to the cellar walls of the plaintiff's house in that town. The second count alleged that the defendants in connection with the work of constructing the sewer had a stationary engine and boiler near the plaintiff's house and that the same had been so unskillfully operated that dense clouds of black smoke and cinders and large quantities of dust had come therefrom, thereby discoloring and disfiguring the house. The third count was for negligently diverting the rain water by deposits of gravel and other material, and by pumping water so that it flooded the cellar of the plaintiff's house.

At the trial in the superior court the plaintiff put in evidence tending to show the injury done to her house according to the declaration.

The principal defense was that the defendants had sublet the contract to one Upper on June 11, 1900; that he was an independent contractor; and that therefore they were not liable. By the defendant's contract with the Metropolitan sewerage commissioners the defendants had no right to sublet their contract. Apart from this there was evidence that the contract with Upper was not a genuine contract, and this question was submitted to the jury. Again, it appeared that the defendants began work in April, 1900, and they did not deny that they continued it until June 11, 1900; and there was no request that the jury should separate the damages up to and after that date.

Another contention is that the board of sewerage commissioners could not be sued; but this is of no consequence in this case, and we need not consider it.

The only exceptions taken were to the refusal of the court to give certain instructions requested, and to the instructions given. The entire charge appears to be reported. It is unnecessary to cite authorities in support of the proposition that an exception does not lie to an entire charge. The defendants have not pointed out in their brief any particular request which should have been given, but have argued the case generally.

W...