McKenna v. Andreassi
| Decision Date | 05 October 1935 |
| Parties | McKENNA v. ANDREASSI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Action by George McKenna against Charles Andreassi. From an order of the Appellate Division dismissing a report by a Judge of the Municipal Court of the City of Boston, after finding for the defendant, the plaintiff appeals.
Affirmed.
Appeal from Municipal Court of Boston, Appellate Division; Dowd, judge.
H. F Lynch, of Boston, for appellant.
G. F Garrity and W. T. Cavanaugh, both of Boston, for appellee.
This action of tort was brought in the Municipal Court of the City of Boston by a minor by his guardian to recover compensation for personal injuries sustained by the plaintiff as a result of his falling into a trench in the street excavated by the defendant. The judge made specific findings of fact, granted and denied requests for rulings by the plaintiff and found generally for the defendant. A report to the Appellate Division was dismissed and the plaintiff appealed.
The report was dismissed rightly.
The judge found these facts among others: The defendant had a contract with the city of Boston to lay a sewer in Sharon street. He excavated in the street a trench twelve feet deep and fifty-two to fifty-four inches wide. The excavated earth was thrown upon one side of the trench, making a barrier four or five feet high. On the other side the defendant erected a strong barrier of planks and wooden horses. The defendant had a permit, issued by the sewer division of the public works department of the city of Boston, to build a sewer. But he ‘ did not have a permit to open the street as required by Revised Ordinances of the City of Boston, ch. 27, sec. 9 and ch. 39, sec. 57.’ The plaintiff, ‘ a boy about six years of age, while playing at fishing in the trench with a line and bent pin, fell in and was injured.’ The watchman had told the plaintiff to keep away from the trench, but the plaintiff had crawled under the barrier to the trench. The plaintiff's mother ‘ knew that he was not old enough to be trusted alone on the street’ and had intrusted him to the care of his ten year old sister. The sister was not with the plaintiff when he fell into the trench. The ‘ failure of the defendant to obtain a permit to open the street had no causative relation to the accident.’ The ‘ mother of the plaintiff was contributorily negligent.’
The judge, at the request of the plaintiff, ruled that the defendant by opening and occupying a public highway without a permit created a public nuisance and that reasonable care on the part of the defendant to prevent injury to the plaintiff was not a defence to the action. And the plaintiff does not rely on any negligence of the defendant, apart from his opening the street without a permit. The plaintiff's contentions, in substance, are that his injury was caused by the defendant's unlawful conduct in digging the trench in the street without a permit, and that his recovery is not barred by the contributory negligence of any person.
Findings of fact cannot be reversed on this appeal. It brings before us for review only the rulings of law made by the trial judge and reported by him to the Appellate Division and the action of the Appellate Division thereon. Duggan v. Matthew Cummings Co., 277 Mass. 445, 449, 178 N.E. 825.
1. The judge refused to rule as requested by the plaintiff that ‘ upon all the evidence there be a finding for the plaintiff.’ This request was not in compliance with Rule 28 of the Municipal Court of the City of Boston (1932) providing that, ‘ No review as of right shall lie to the refusal of a request for a ruling ‘ upon all the evidence’ in a case admitting of specification of the grounds upon which such request is based unless such grounds are specified in the request.'The plaintiff, therefore, was not entitled as of right to review by the Appellate Division of the refusal of this request. Holton v. American Pastry Products Corp., 274 Mass. 268, 174 N.E. 663; Duralith Corp. v. Leonard, 274 Mass. 397, 174 N.E. 511; Wainwright v. Jackson (Mass.) 195 N.E. 896. And the Appellate Division did not in its discretion review such refusal. Therefore, no action of the Appellate Division on the requested ruling is before us on this appeal. Duggan v. Matthew Cummings Co., 277 Mass. 445, 449, 178 N.E. 825. However, the plaintiff is not harmed by the application of this procedural rule, for, as will later appear, our decisions upon specific rulings made and refused are fatal to recovery by the plaintiff.
2. The ruling of the trial judge-the correctness of which is not questioned by the defendant-that the defendant by opening and occupying a public highway without a permit created a public nuisance was based necessarily on the ground that by so doing the defendant unlawfully interfered with the use of the street by the general public for purposes of travel. Banks v. Highland Street Railway, 136 Mass. 485, 486; Dalton v. Great Atlantic & Pacific Tea Co., 241 Mass. 400, 402, 403, 135 N.E. 318. Where injury results directly from such a nuisance to a person using the street rightfully and in the exercise of due care a private action can be maintained for damages sustained, independent of negligence of the defendant. Smith v. Smith, 2 Pick. 621,13 Am.Dec. 464; Dalton v. Great Atlantic & Pacific Tea Co., 241 Mass. 400, 402, 403, 135 N.E. 318; Brown v. Alter, 251 Mass. 223, 146 N.E. 691, 38 A.L.R. 1036; Jones v. Great Barrington, 273 Mass. 483, 488, 174 N.E. 118; Balian v. Ogassin, 277 Mass. 525, 530, 179 N.E. 232, 78 A.L.R. 1021; LaFucci v. Palladino, 285 Mass. 240, 243, 189 N.E. 111. A ruling of the trial judge at the request of the plaintiff, in substance, that due care on the part of the defendant was not a defence to the action, recognized the principle here stated with respect to the immateriality of the defendant's negligence. And it was not error to refuse to rule (or find) ‘ as to this plaintiff,’ as requested by him, that ‘ In this case negligence of the defendant is not a necessary element.’ The principle of law involved was covered by the ruling made and this requested ruling (or finding) was susceptible of the interpretation that in the absence of negligence of the defendant the plaintiff could recover-a ruling (or finding) which, for reasons hereinafter stated, the judge was not required to make.
3.‘ Illegality on the part of a defendant does not of itself create a liability for remote consequences. * * * The causal connection between the two still remains to be established. * * * In order to maintain a personal action to recover damages for a public nuisance, the plaintiff must show that his particular loss or damage was caused by the nuisance, just as in case of any other tort.’ Stone v. Boston & Albany Railroad, 171 Mass. 536, 544, 51 N.E. 1, 4,41 L.R.A. 794. See Stowe v. Mason (Mass.) 194 N.E. 671.
The finding of the trial judge that the ‘ failure of the defendant to obtain a permit to open the street had no causative relation to the accident’ was not erroneous as matter of law. It could have been found that the public nuisance created by the defendant in opening and occupying the street without a permit was too remote as a cause of the injury to impose liability therefor on the defendant. Whether it could have been so ruled as matter of law we need not decide. See Davis v. John L. Whiting & Son Co., 201 Mass. 91, 96, 87 N.E. 199, 18 A.L.R. 782.Ordinarily causation is a question of fact, though it may become a question of law when all the facts are established and there can be no reasonable difference of opinion as to the effect of them. Dalton v. Great Atlantic & Pacific Tea Co., 241 Mass. 400, 404, 135 N.E. 318; Amer. Law Inst. Restatement Torts, § 434. Even if the plaintiff while playing in the street was not a trespasser in his relation to persons using the street for purposes of travel (O'Brien v. Hudner, 182 Mass. 381, 65 N.E. 788; Boni v. Goldstein, 276 Mass. 372, 376, 177 N.E. 581), he was not a traveller on the street for whose use the city was required to keep it in repair. Blodgett v. Boston, 8 Allen, 237; Tighe v. City of Lowell, 119 Mass. 472. The ‘ public ways of the commonwealth are not laid out as playgrounds for children.’ O'Brien v. Hudner, 182 Mass. 381, 382, 65 N.E. 788, 789. The ordinance requiring a permit for opening and occupying a street, so far as it was for the protection of the general public, was for the protection of travellers. It is not necessary, however, to go so far as to hold that the ordinance here in question was not intended also for the protection of persons in the position of this plaintiff. But at least the fact that the plaintiff was not a traveller on the street had some bearing on the degree of remoteness of the injury from the violation of the ordinance. In Dalton v. Great Atlantic & Pacific Tea Co., 241 Mass. 400, 404, 135 N.E. 318, 320, where the defendant maintained an awning over a sidewalk without a license to do so, as required by a city ordinance, the court said: ‘ The defendant, when it wrongfully maintained an obstruction in the street, was forewarned that it might turn out to be an object of peril to travelers.’ Though the accident would not have occurred if the defendant had not dug the trench, and though the trench was dug by the defendant in violation of the ordinance, the judge could have found that the accident to the plaintiff while playing in the street in such circumstances with respect to barriers, warning by the watchman and the conduct of the plaintiff as are here shown was so extraordinary-so ‘ unusual and unlikely to happen * * * remotely and slightly probable,’ Falk v. Finkelman, 268 Mass. 524, 527, 168 N.E. 89, 90-that the violation of the ordinance was not a...
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