Hart Packing Co. v. Courtenay Guild

Pierce, J. This is an action of tort to recover damages for injuries to certain personal property of the plaintiff, on September 30, 1922, in consequence of water coming from the premises of the defendant. The plaintiff and the defendant were tenants of a common landlord. The plaintiff occupied under a lease the entire half of the second floor at No. 144 High Street, Boston, with the exception of a small room on the side, and under a similar lease the defendant occupied on September 30, 1922, and had occupied since February, 1913, the whole of the third floor of the building numbered 142 to 146 High Street, Boston. At the trial before a jury, evidence was introduced that water, on September 30, 1922, dripped “ pretty fast ” from a matched board ceiling over an area five feet square and a quantity of cardboard boxes, saturated the stock, and damaged it. There was evidence that, above the ceiling where the leakage occurred, on the premises of the defendant, there was a toilet room, in which “ there was a wash basin, a flush closet and a urinal.” There was evidence that there was a main supply pipe for water which came into the room and went “ right up through the building,” and that from this pipe there were branches “ one to the urinal, one to the flush closet, and one to the wash basin ”; that at the back of the urinal there was a marble slab parallel with the wall of the building; that “ after some difficulty ” a plumber located the leak behind the marble slab, “ it couldn’t be seen from the front,” and there “ found a small slit, just a small crack in the pipe, the urinal supply pipe, which was a lead pipe, probably five-eighths of an inch in diameter.” There was no positive evidence of the age of the urinal supply pipe, nor of its being the original pipe. There were two bends in this pipe near the place of the slit, one in each side of the urinal, one going up and one running down to the wash basin. The faucet in the pipe had a self-closing spring; this snaps the water off much faster, if one lets “go of it quick” than a “compression cock,” which turns by hand; such a faucet has been long in common use. When the faucet [46] is turned off sharply, the pipe resists ‘ ‘ in the weakest part of the pipes in the building,” in this case “where the split came.” There was no evidence when the plumbing was installed in the building. There was evidence that a “ good heavy lead pipe is good for twenty-five or thirty years ” and “ ought to go its full limit ”; that at the time of the leak in the High Street district there was a water gauge pressure of eighty-five pounds, and that this pressure was greater by five or six pounds than it had been, at a time not stated. There was no evidence of the ability of the pipe to sustain the water pressure of eighty-five pounds or to the effect that it was not sufficiently heavy to do so safely or that a pressure reducing valve was required, nor positive evidence that there was not any reducing tank there in use. The plumber cut out the place where the slit or crack had occurred, pulled the pipe together and soldered it, making a joint. On the undertaking of the plaintiff to prove “ leaks in the same pipe from which this leak came,” subject to the exception of the defendant, the judge allowed the plaintiff to introduce evidence that water leaked through to the ceiling, at the same place at a time in the summer of 1921, and again at a time in the summer of 1922, and again at another less definite time. There was no evidence as to the cause of any one of the three leaks that occurred before September, 1922. On the evidence reported, the motion to strike out all the evidence relating to prior leaks should have been granted; and the question, whether the prior leaks were “ sufficiently connected ” with the leak of September 30,1922, should have been determined by the judge and not submitted as a question of fact to the jury. It is the province of the judge who presides at a jury trial to decide all questions of fact which may be necessary to determine the question of the admissibility of offered evidence, and such preliminary question of fact should not be submitted to the jury, unless the determination of the preliminary fact falls within certain established exceptions to the general rule, of which the case at bar is not one. Gorton v. Hadsell, 9 Cush. 508. Commonwealth v. Reagan, 175 Mass. 335, 336. Ames v. New York, New Haven & Hartford Railroad, 221 Mass. 304, 305. [47] We think the evidence relating to the effect of turning on or off the self-closing faucet and to the increase in pressure in city mains, in the absence of evidence that the leak was attributable to one or both of these possible causes, was inadmissible. On all the evidence, the motion for a directed verdict for the defendant should have been granted, and it is now ordered under G. L. c. 231, § 122. Judgment for the defendant.