Moraski v. T.A. Gillespie Co.
| Decision Date | 31 May 1921 |
| Parties | MORASKI v. T. A. GILLESPIE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Franklin T. Hammond, Judge.
Action by Stella Moraski against the T. A. Gillespie Company, with trustee process. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions sustained.
Defendant under a contract with the Boston Transit Commission constructed the portion of the so-called Dorchester tunnel in the street in front of plaintiff's premises. Plaintiff alleged that the work so carelessly and negligently done that her house settled as a result of the work.
George P. Beckford, of Boston, for plaintiff.
Choate, Hall & Stewart and Archibald MacLeigh, all of Boston, for defendant.
This is an action of tort by the owner of the premises No. 13 Boston street, South Boston, against the defendant construction company which was engaged at the time in building a section of the Dorchester tunnel, so called. St. 1911, c. 741. The declaration and specifications allege that the work was so carelessly performed as to cause a settlement of the house.
The plaintiff's house was an old two-story wooden building resting upon a brick and stone foundation, ‘in fairly good condition * * * for an old building,’ with a store projection extending about four feet from the front walls. Excavation was made for the tunnel in the street in front of the premises. There was evidence that the earth was dug so close as ‘almost to touch the building,’ and the excavation ‘was right at the door, that is, touching the door,’ and ‘so near’ the building that some of ‘the bricks fell out from the foundation.’ The engineer in charge of the work testified that the distance from the main building to the subway wall was 5 or 6 feet, and that between the tunnel excavation and the building an excavation was made for a sewer which was relocated, owing to the construction of the tunnel. This line of excavation was 2 feet from the store projection and about a foot from the steps. The sewer excavation was 6 to 8 feet deep. The tunnel excavation was 28 feet deep. Two-inch planks were driven into the ground to hold in place the soil between the sewer and the foundation of the building. Before the work was begun, cracks were found in the wall, and some of the wood in the sills was rotten. As the work went on, more cracks were discovered, ‘the doors wouldn't shut, the windows were out of the frame,’ and ‘the stairs had lowered.’ The building settled from 1 3/8 inches to a little less than one-half inch. No braces were placed under the foundations to support them during the progress of the work, and there was evidence that when an excavation of the depth of 20 feet is dug in front of the wall of a house and the building is not supported in some way, it is to be expected that it will ‘settle a little,’ and that it required extremely skillful work to brace the building to prevent it from settling. A witness for the plaintiff testified that it was the practice when excavations are made near the foundation of a building, to hold it in position by temporary supports. The judge directed a verdict for the defendant and the plaintiff excepted.
An action of tort will not lie to recover damages which are incidental to the performance of a public work authorized by the Legislature. For such damages the plaintiff must pursue the remedy provided in the statute. St. 1911, c. 741, Part I, § 21; Perry v. Worcester, 6 Gray, 544, 66 Am. Dec. 431;Saltonstall v. New York Central Railroad, 130 N. E. 185, where the cases are collected. If, however, there is any evidence that the defendant in the performance of this work was negligent, then it is for the jury to pass on the question; and if they were satisfied that the defendant's careless manner of carrying on the work injured the property, the plaintiff could recover. Perry v. Worcester, supra; Murray v....
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