Kelly v. Inhabitants of Winthrop

Braley, J. The jury on the testimony of the defendant’s engineer could find, that the standpipe whose overflow damaged the plaintiff’s property had been built not only for protection from fire, but “to equalize the pressure in general for the domestic service.” A further finding, that the defendant maintained the domestic service and sold the water would have been warranted from its answers to the interrogatories and the testimony of the plaintiff.* It is not material that the source of supply was the main conduits of the metropolitan water system with which the service pipes owned by the town had been connected under the provisions of the St. of 1895, c. 488, § 3, as amended by St. of 1898, c. 392, and St. of 1899, c. 349. The standpipe, even if used in a dual capacity, formed part of the water system, and the water on storage was the property of the defendant, subject to its sole management and control. It having voluntarily undertaken for its own corporate benefit a commercial enterprise, the defendant was required to use reasonable care in the maintenance and use of the [473] standpipe to avoid injury to the contiguous estate of the plaintiff. Bates v. Westborough, 151 Mass. 174. Dickinson v. Boston, 188 Mass. 595, 599, and cases cited. Farrigan v. Pevear, 193 Mass. 147, 150, 151. See R. L. c. 32, §§ 38-48. The evidence of the plaintiff’s expert, whose qualifications were for the presiding judge to determine, is sufficient to show, that if an overflow pipe had been provided the water would have been discharged on the defendant’s own land, and the jury could have found that this device was feasible and that if it had been used the plaintiff’s property would not have been damaged. Carroll v. Boston Elevated Railway, 200 Mass. 527. Glass v. Hazen Confectionery Co. 211 Mass. 99. The fact that previously no overflow had occurred cannot as matter of law exonerate the defendant. Its freedom from liability depended upon the discharge of its duty of exercising due care in the construction of the standpipe for the uses for which it was designed as well as in proper supervision after the water system had been put in operation. Bates v. Westborough, 151 Mass. 174, 182. Hand v. Brookline, 126 Mass. 324. It is doubtless true, as the defendant contends, that, if the regulation valve over which it had no control had not become clogged, the water level would have remained ten feet below the top of the standpipe. But it was unquestioned that if foreign substances floating in the water passed into the valve it would cease to work automatically and would leak, flooding the standpipe. The jury accordingly were warranted in finding that the defendant reasonably ought to have anticipated and guarded against this condition. Cormo v. Boston Bridge Works, 205 Mass. 366, 369. It could not under the circumstances store this body of water without at least using the care of an ordinarily prudent and careful man to prevent its escape to the land of the plaintiff. The defendant’s requests in so far as they were not covered by the instructions coiild not have been given, and, no error of law appearing, the exceptions must be overruled. So ordered. Footnotes [*] The plaintiff-testified “that she bought water from the defendant and paid for the same by payment other than real estate taxes.”