Stockwell v. Town of East Longmeadow
Stockwell v. Town of East Longmeadow
Opinion of the Court
These are three actions of tort to recover damages for injury to the foundations of the plaintiffs’ houses alleged to have been caused by the town’s negligent delay in locating, shutting off, and repairing a leak in a
At a new trial there was a verdict in each case for the plaintiffs. The town excepted to the judge’s failure to expand his charge in respect of the town’s liability in the event that the jury should find that its negligence was a contributing cause of the injury to the plaintiffs ’ property.
At the first trial there was evidence of the following circumstances. Each plaintiff lives in one of three adjoining houses on the same street in East Longmeadow. On November 26, 1955, between 10:30 p.m. and 11 p.m. the Stock-wells heard in their cellar the sound of running water. A large crack appeared in one wall of their house. Stoekwell called in two neighbors, including Lindwall (see fn. 1). The neighbors had heard similar sounds. About 11:30 p.m. the police were notified. About midnight two police officers came to the Stoekwell house and departed to get the water department superintendent. He arrived about 1 a.m. on the 27th and investigated the noises. He or an associate closed water line valves at one end of the street and partly closed the valve at the other end of the street, “reducing the volume of water but not the water pressure.” Tests
During the morning the department made further investigations and about noon a broken water main was discovered. Considerable damage was done to the plaintiffs’ houses “as a result of the settling of earth beneath their foundations.” The Stockwell cellar floor was at an elevation one foot higher than that of the water line break. The Lindwall cellar floor was four feet, and the Makara (see fn. 1) cellar floor was six feet, above the break. There was testimony by each plaintiff and by a “contractor engaged by them as to the extent of the damage to their . . . [houses] from the undermining of foundations.” The damage to the Lindwall house was first noticed on November 27 about noon, and that to the Makara house was first noticed about 11 a.m. on the 27th. One large crack in the living room of the Stockwell house was noticed between midnight and 1 a.m. on the 27th, before the department’s employee arrived. Stockwell, earlier that night, had “heard sounds as if his house was cracking.” Cracks in the cellar were observed that same night. More damage to the Stock-well house was discovered on the morning of the 27th and later that day.
1. The town contends that the plaintiffs’ motions for new trials were never in fact allowed because the first trial judge failed to comply with G-. L. c. 231, § 128 (as amended through St. 1945, c. 578, § 2),
2. The town argues, in effect, that there was insufficient evidence at the first trial of the extent of any damage to the houses, conceivably attributable to the town’s alleged negligence, to warrant any recovery, and that, accordingly, no new trial should have been granted. If the department representative could have been found to have been negligent in failing to shut the water off completely at the ends of the street early in the morning of the 27th, then the evidence of the extent of the damage suffered thereafter was sufficient to warrant findings of subsequent damage to each house. See Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 492-493. The only exception is to the granting of the motions for new trials. We cannot say as matter of law that the evidence at the first trial would not have warranted some recovery for each plaintiff. No abuse of discretion in granting the motions has been established.
Exceptions overruled.
Examination of the original motions (see G. L. c. 231, § 135, as amended through St. 1960, e. 171) shows that one of the grounds asserted for a new trial in each motion was that the verdict was against the weight of the evidence.
Section 128, as so amended, reads in part, “Whenever a verdict is set aside and a new trial granted under section one hundred and twenty-seven, the justice granting the motion for the new trial shall file a statement setting forth fully the grounds upon which the motion is granted, which statement shall be a part of the record of the case ...” (emphasis supplied). Section 127, referred to in § 128, reads in part, “The court may, at any time before judgment, set aside the verdict in a civil action and order a new trial for any cause for which a new trial may by law be granted; but a verdict shall not be set aside except on written motion by a party to the cause, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court . . .” (emphasis supplied).
There was also no absence of proof at the first trial that the town would be liable for any negligence of the water department. The evidence concerning the investigation and repair of the water leak by the town authorities and that the water served the dwellings in the neighborhood was sufficient to warrant an inference that the town was there engaged in the commercial distribution of water with the consequence that it would be liable for its negligence in the course of that distribution. See Sloper v. Quincy, 301 Mass. 20, 23-24; D’Urso v. Methuen, 338 Mass. 73, 74.
Reference
- Full Case Name
- Marshall F. Stockwell & another v. Town of East Longmeadow (and two companion cases)
- Status
- Published