Goldberg v. Federman

Rugg, C. J. This is an action of tort to recover for damages by water to wall-paper stock. The plaintiff and the defendant are competitors in the wall-paper business. The plaintiff occupied the third and the defendant the fourth floor or “loft” of a comparatively new building, each as tenant using the space, for storage. The top or fifth flopr of the building had been vacant for about a month before the eventr here in question. Neither the plaintiff nor the defendant exercised any control over the plumbing, which was under the charge of the owner. On the afternoon of December 27, 1916, an employee of the plaintiff was shipping wall-paper from his loft, leaving the premises about six o’clock, and 'the defendant with employees was working in his loft, which he quitted about a quarter before five o’clock, leaving both doors locked, and did not return. The owner of the building testified that at about half past eight o’clockof the same evening he forced a window in the defendant’s loft, after finding both doors locked, and discovered water flowing from the fahcet into the sink at full pressure and the sink full of water overflowing on to the floor. The next morning a witness visited the fifth floor, but found no signs of water. The plaintiff’s wall-paper stock was injured by water from above. The grievance of the defendant is a refusal to rule that on all the evidence the plaintiff was not entitled to recover, and a finding for the plaintiff. There is no error of law on this record. It is the typical case for decision upon circumstantial evidence. It was for the tribunal established to try the facts to draw whatever inference 'seemed most rational from the fact that an open faucet running at full'pressure and overflowing its receptacle was found in a fourth story loft with all doors locked, in the exclusive occupation of the defendant, where he with his servants had been work-l ing and which he had left after locking its doors less than four hours before. The trial judge was not precluded from drawing the inferences which seemed likely simply because the defendant, called by the plaintiff as a witness, .testified that the faucet [445] and sink were used only once during that day, and then by a workman on the outside of the building, who washed blood from his injured hand. The doctrine of Buckland v. New York, New Haven, & Hartford Railroad, 181 Mass. 3, and Winship v. New York, New Haven, & Hartford Railroad, 170 Mass. 464, has no application to the facts here disclosed. Order dismissing report affirmed.