Newborg v. City of Boston

Morton, J. This is an action of tort for negligence in maintaining a sewer and drain in Spencer Street, in the defendant city, and thereby causing sewage to back into and flood premises belonging to the plaintiff. At the close of the evidence, the judge, at the defendant’s request, ruled that there was no evidence to go to the jury, and instructed them to return a verdict for the defendant which was done. The case is here on exceptions by the plaintiff to this ruling and instruction. There are also exceptions relating to the exclusion of evidence. The negligence complained of was in allowing a drain, built by the defendant to aid in connecting the estate now belonging to the plaintiff with the sewer, to be clogged up with pieces of cement. The drain was put in in 1894. The plaintiff’s house was completed in October, 1902, and from that time until Eeb [71] ruary, 1904, the drain “ worked all right.” * The plaintiff testified that he was an experienced drain layer, that he built the connection between his house pipe and the drain, and that no cement was left in the pipe which he constructed, the inference which he sought to draw being that the pieces of cement, which were taken out of the drain and caused the clogging up of the drain, as he contended, must have been negligently allowed to get into it when it was put in by the defendant. If we assume in favor of the plaintiff that the stopping of the drain was caused by the pieces of cement, that they did not get into the pipe in consequence of anything that he did or omitted to do in making the connection, and that if they were carelessly allowed to get into the drain when it was constructed the defendant would be liable, it is still, it seems to us, a matter of conjecture as to how they got into the drain. The drain worked all right for nearly a year and a half after the plaintiff’s house was connected with it, and while it is, of course, possible that the cement may have been carelessly allowed to get into the drain when the city built it, the inference is too conjectural, we think, to warrant a verdict against the defendant. We see no error in the exclusion of the evidence that was offered.† If there was no evidence that would warrant a finding of negligence on the part of the defendant in constructing the drain then it was immaterial whether certain persons had paid for the use of the sewer in Spencer Street or not. And for aught that appears the joints in the drain pipes were made in this case [72] as the plaintiff offered to show they were usually made. There was at any rate no offer to show that they were not. And in the absence of such an offer, testimony as to the methods of making joints in six inch drain pipes, which these were, for the purpose of securing a free and open pipe was irrelevant and immaterial. J. F. Cronin, for the plaintiff. S. M. Child, for the defendant. Exceptions overruled. Footnotes [*] “ The evidence tended to show that, at the time of the alleged damages, the six inch pipe which the city had built under the culvert was blocked in that part that was under the culvert with several pieces of cement, one of which was five inches square. The work of clearing out the pipe after the stoppage was done by the defendant after notice from the plaintiff.” [†] The evidence excluded was as follows: 1. The plaintiff offered to prove that the defendant had received from certain persons on Spencer Street fees for the use of the sewer, and had therefore received compensation for the use of the same. 2. The plaintiff offered to show that in the ordinary construction of pipes like the six inch pipes, certain methods are adopted as the joints are made, one after another, for the purpose of securing a free and open pipe, not particularly here, but in every instance, and what the result of that sort of work would be. (This was offered for the purpose of arguing as to the way in which the concrete came into the six inch pipes.)