Matthews v. New York Cent. & H.R.R. Co.

• Decision Date: 01 July 1918
• Parties: MATTHEWS et al. v. NEW YORK CENT. & H. R. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 10

120 N.E. 185

MATTHEWS et al.

v.NEW YORK CENT. & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1918.

Exceptions from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action of tort by Nathan Matthews and George E. Howe, trustees, against the New York Central and Hudson River Railroad Company. Verdict was directed for plaintiffs, with ruling that they could not recover for certain damage, and both parties except. Judgment ordered for plaintiffs.

Defendant's fifth request for ruling appears in the opinion. Its requests 8 a-e were as follows:

‘The jury should disregard the finding of the auditor in his supplemental report that--

‘(a) The operations of the railroad in connection with the Trinity Place station were unnecessary and avoidable;

‘(b) Also the reference to his finding on page 12 of his original report that the conditions he sets forth brought to the plaintiffs' property a new and different kind of annoyance;

‘(c) Also his statement ‘that the annoyance to the plaintiffs was different both in kind and degree and that they were unnecessary and avoidable’;

‘(d) Also his statement that he observed the operations of the switching engine as it distributed freight cars in the Huntington avenue yard;

‘(e) Also his findings of the operations of outward trains on different tracks adjacent to the plaintiffs' property.’

Wm. G. Thompson and George E. Mears, both of Boston (Jas. F. Jackson, of Boston, of counsel), for plaintiffs.

Elder & Whitman, of Boston, for defendant.

DE COURCY, J.

This is an action of tort for damages to the property of the plaintiffs, including the buildings known as the Hotel Oxford and the Oxford Terrace, situated on Huntington avenue in Boston, and adjoining the tracks of the defendant's lessor, the Boston & Albany Railroad Company. The first count, on which the plaintiffs elected to go to the jury, alleged that during the six years prior to December 1, 1909, the defendant ‘unreasonably, carelessly and unlawfully operated locomotives,’ and ‘has caused an unreasonable and unnecessary discharge of smoke, soot, cinders, and noxious fumes from said locomotives.’ The claim of injury from noise, which was included in the specifications, was waived at the close of the evidence.

The case was referred to an auditor, and later a trial was had in the superior court. A special question on the issue of liability and four questions on the issue of damages were submitted to and answered by the jury. Thereupon the court, without objection or exception, directed a verdict for the plaintiffs based upon the answers to questions numbered 3 and 4, and ruled that they could not recover for the damage to the outer walls and for the cost of removing the old dining room in the Hotel Oxford, to which questions numbered 1 and 2 related.

We consider first the exceptions of the defendant, and in the order argued in its brief.

The two plaintiffs were in legal contemplation but one party, and were entitled to challenge only two jurors peremptorily. Stone v. Segur, 11 Allen, 568. But in view of the judge's opinion, that the plaintiffs were liable not to have a fair trial if the juror improperly challenged should remain on the panel (an opinion warranted by the statement of counsel as to the remark made by that juror), we cannot say that the informal exercise of his discretion by the judge (see R. L. c. 176, § 28) was prejudicial error. R. L. c. 176, § 32; Commonwealth v. Livermore, 4 Gray, 18.

2. The defendant contends that its rights were seriously affected by the successive rulings of the court relative to the auditor's report, and that in any event the court should have withdrawn from the jury those portions referred to in its fifth and eighth requests for rulings. Many passages were eliminated from the report, but at the request of the defendant the eliminated passages were read to the jury. It was contended that the opening of Trinity Place station for public use in the year 1900 greatly altered the relation of the plaintiffs' property to the railroad. The judge excluded the first portion of said fifth request:

‘The jury should disregard the views of the auditor as set forth in his supplemental report as to the construction of the act of the Legislature and of the law under which the Trinity Place and Huntington avenue stations were built and used.’

And it seems apparent, from an examination of the charge, that the remainder, ‘and his finding that the operations of the railroad in connection with such stations were unnecessary and avoidable,’ was presented to the jury as referring only to the unnecessary smoke, soot and cinders. As to the requests numbered 8, all were given except 8a; and here also ‘the operations of the railroad in connection with the Trinity Place station’ were confined to the unnecessary and avoidable smoke. It should be added that the court instructed the jury with much detail to disregard the auditor's rulings of law, and all his findings with reference to or so far as they related to the second and third counts. And the report itself did not go to the jury room. These exceptions must be overruled.

3. At the close of the judge's charge counsel for the defendant called attention to the specifications as affecting the question on liability, to the subject of the nonproduction of documents, and also to the failure to give many of the rulings requested; and several exceptions were taken. Many of these exceptions have not been argued, and presumably are waived; and only three requests (62-64) are specifically referred to. The question was:

‘Did the defendant, during the period from December 1, 1903, to December 1, 1909, substantially continuously emit upon and into the plaintiffs' buildings, known as the Hotel Oxford and the Oxford Terrace, from the stacks of locomotives on its location adjoining the said buildings, considerable quantities of smoke, soot, and cinders which it was unnecessary to emit in the reasonable operation of said locomotives and in the reasonable transaction of the defendant's business under its franchise?’

See Mellen v. Western Railroad Corp., 4 Gray, 301;Hearst v. New York Central & Hudson River Railroad, 215 N. Y. 268, 109 N. E. 490;Aldworth v. Lynn, 153 Mass. 53, 26 N. E. 229,10 L. R. A. 210, 25 Am. St. Rep. 608.

In view of the evidence and the care with which the judge defined ‘substantially continuously,’ in connection with the specifications filed, no error is shown in this respect. The same is true of what the judge said on the subject of the nonproduction of documents, and of the peculiar position of the plaintiffs' property with reference to the...