Harvard Furniture Co. v. City of Cambridge

• Decision Date: 17 September 1946
• Citation: 320 Mass. 227,68 N.E.2d 684
• Parties: HARVARD FURNITURE CO., INC. v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 227

68 N.E.2d 684

HARVARD FURNITURE CO., INC. v. CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

September 17, 1946

May 8, 9, 1946.

Present: FIELD, C.

J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.

Municipal Corporations, Liability for tort, Waterworks. Negligence Water pipe. Practice, Civil, Ordering verdict.

A municipality undertaking to supply water for a price is liable for negligence in the laying out or repair of its supply pipes.

In an action for negligence with a declaration in two counts, an exception to the granting of a general motion by the defendant for a directed verdict should be sustained where in the record there was some evidence of negligence of the defendant causing damage to the plaintiff, irrespective of whether the evidence would warrant a verdict for the plaintiff upon each count separately or would warrant a finding of negligence in all the particulars alleged by the plaintiff.

A finding of negligence of a city conducting waterworks was warranted by evidence that an abutter on a street was damaged by water flowing into his premises from a cast iron street main which broke because it had been allowed to rest upon the concrete top of a railway subway without a proper cushion of sand or earth to protect it from vibration caused by trains.

Hearsay evidence allowed by the parties to remain in the case is to be considered by this court on the issue of the sufficiency of the evidence to warrant a verdict for the plaintiff.

TORT. Writ in the Superior Court dated February 18, 1944. The action was tried before Morton, J., who allowed a motion by the defendant "for a directed verdict in its favor." The plaintiff alleged exceptions.

M. H. Goldman, (H.

L. Sostek with him,) for the plaintiff.

J. H. Smith Assistant City Solicitor, for the defendant.

LUMMUS, J. In this action of tort for negligence the declaration contained two counts which differed only in that the first alleged negligence in the construction, maintenance and operation of the defendant's water supply system, while the second alleged negligence in making repairs upon that system. The plaintiff occupied as a tenant a store and the cellar beneath it on the southerly side of Massachusetts Avenue in Cambridge. Its merchandise was damaged in January, 1944, by water that flowed into its cellar through the cellar wall along Massachusetts Avenue. The first such flowing began on January 11, 1944, and the break that caused it, which was in a six-inch cast iron main pipe that ran southerly into Bow Street a little to the east of the plaintiff's store from the ten-inch cast iron main pipe that ran through Massachusetts Avenue, was repaired on January 14, 1944. After a period of quiet, the flow into the cellar resumed on January 27, 1944, and was found to come from a break in the ten-inch main in Massachusetts Avenue, which was repaired on the same day. At the end of the plaintiff's evidence, the judge directed a verdict in favor of the defendant, and the plaintiff excepted.

The law governing the liability of a municipality for a defect in its water supply system differs from the law governing its liability for a defect in a sewer. A municipality is liable for the negligent construction or maintenance of a sewer though not for negligent defects in the original plan of the sewer adopted by independent public officers. ^[1] But in undertaking to supply water at a price, a municipality is not performing a governmental function but is engaging in trade and is liable just as a private company would be for any negligence in the laying out of its pipes, in keeping them in repair, or in furnishing potable water through them. Hand v. Brookline, 126 Mass. 324 . Lynch v. Springfield, 174 Mass. 430 . Pearl v. Revere, 219 Mass. 604 . Bolster v. Lawrence, 225 Mass. 387 , 390. Buono v. Boston, 290 Mass. 59 . Sloper v. Quincy, 301 Mass. 20 . Horton v. North Attleborough, 302 Mass. 137 , 138. Sullivan v. Saugus, 305...