Iver Johnson Sporting Goods Co. v. City of Boston

• Citation: 334 Mass. 401,135 N.E.2d 658
• Parties: IVER JOHNSON SPORTING GOODS CO. v. CITY OF BOSTON.
• Decision Date: 06 July 1956
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 658

135 N.E.2d 658

334 Mass. 401

IVER JOHNSON SPORTING GOODS CO. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1956.

Decided July 6, 1956.

Walter F. Henneberry, Newton Center (Declan W. Corcoran and Arthur L. Brown, Boston, with him), for plaintiff.

Joseph Graglia, Asst. Corp. Counsel, Dorchester, for defendant.

Before QUA, C. J., and RONAN, SPALDING, COUNIHAN, and WHITTEMORE, JJ.

RONAN, Justice.

These are the plaintiff's exceptions taken to the direction of a verdict for the defendant in an action of tort brought to recover for damage due to a break in one of the defendant's water mains with the consequent escape of water into the plaintiff's building.

There was evidence tending to show that the break occurred in a twelve inch 'high service' pipe laid in Washington Street, near the corner of Cornhill, upon which the plaintiff's premises fronted, at about four-thirty o'clock on the morning of November 22, 1947. The city in maintaining a system for the distribution and sale of water for domestic purposes was engaged in a commercial and not a governmental function and was bound to use reasonable care to see to it that no harm resulted to the public from the maintenance of the system. Sloper v. City of Quincy, 301 Mass. 20, 24, 16 N.E.2d 14; Sullivan v. Inhabitants of Town of Saugus, 305 Mass. 127, 130, 25 N.E.2d 185; Harvard Furniture Co., Inc., v. City of Cambridge, 320 Mass. 227, 68 N.E.2d 684; Gordon v. City of Medford, 331 Mass. 119, 123, 117 N.E.2d 284. Even apart from whatever caused the break in the main, there was a great conflict in the testimony as to the time the water was shut off, and thus there was presented a question of fact as to whether the city acted with due diligence in stopping the flow of water from the broken pipe. Cole Drug Co. of Massachusetts v. City of Boston, 326 Mass. 199, 201-202, 93 N.E.2d 556; A. Da Prato Co. v. City of Boston, 334 Mass. ----, 134 N.E.2d 438.

It was agreed at the trial that the basement of the plaintiff's building extended out under the sidewalks of both streets of the corner lot upon which the building was located. The provision of an ordinance of the defendant in so far as material reads as follows: 'Every owner of an estate hereafter maintaining any cellar, vault, coal hole or other excavation under the part of the street which is adjacent to, or a part of, his estate, shall do so only on condition that such maintenance shall be considered as an agreement on his part to hold the city harmless from any claims for damage to himself or the occupants of such estate resulting from gas, sewage or water...