Pye v. Faxon
| Decision Date | 21 June 1892 |
| Citation | 31 N.E. 640,156 Mass. 471 |
| Parties | PYE v. FAXON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
O.B. Mowry, for plaintiff.
Lund Jewell & Welch, for defendant.
This is an action of tort. The plaintiff is a tenant at will of a house in Boston used by her as a home and as a lodging house and the defendant is the owner of an adjoining lot of land. The action is brought to recover for various trespasses alleged to have been committed by the defendant upon the plaintiff's estate, while the defendant was engaged in putting up a large building for business purposes on his land. The declaration alleges that the plaintiff unlawfully threw or dropped upon the plaintiff's premises mortar, bricks, and debris, interfered with the free and unobstructed use by the plaintiff of her back yard, caused much dust to be deposited in sundry rooms of the plaintiff's house, thereby interfering with the comfort and enjoyment of the plaintiff's house, and that the defendant interfered with and prevented the plaintiff's letting many of her rooms to lodgers. The jury returned a verdict for the plaintiff, and the case comes before us on the defendant's exceptions.
The plaintiff testified in respect to the matters set forth in her declaration, and also testified--apparently without objection--to other trespasses. The defendant asked the judge to rule that there was a variance between the declaration and the proof, and that the plaintiff could not recover "for any of the acts or injuries shown by the plaintiff's evidence." The judge rightly refused so to rule. There was evidence to sustain the allegations of the declaration. If the defendant wished to exclude evidence of other trespasses he should have objected to it at the time, or have asked the judge afterwards to instruct the jury not to regard it.
The principal question in the case arises out of the defendant's contention that the work was done under a contract, and that the trespasses were caused by the negligence of the servants of an independent contractor. In the first part of the bill of exceptions is a long paragraph, beginning with the words "It appeared," and several lines further on are the words: "That the defendant let all of the mason work on the said building to one James Smith, a contractor, under a special contract that said Smith should furnish the materials, and perform all the labor, in erecting the walls and doing all the mason work on said building according to the plans and specifications furnished him by the defendant." We do not think that the words "It appeared" are to be interpreted as meaning that the existence of the contract was a conceded fact, for the exceptions later on set forth the evidence at length bearing on this question of the existence of an oral contact. We see no error, therefore, in submitting the question to the jury whether any such contract was made.
The jury were further instructed that, if they found that a contract existed, the defendant was not liable if the injuries were caused by the negligence of the contractor or of the men in his employ, unless the work was such as necessarily involved injury to the plaintiff's premises if the work was done in the proper way. It appeared from the testimony of the defendant's witnesses that the wall next to the plaintiff's premises was not built on the boundary line, but was 91/2 inches from it; that it was built by putting a staging on the inside, and the bricks, when laid, pressed out the mortar, which was then scraped off by the trowels of the masons, and more or less of it dropped down upon the plaintiff's land, upon the rear windows, and the clothes hanging in her back yard. The presiding judge in his charge to the jury said: ...
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