Citation Numbers: 278 Mass. 24
Judges: Sanderson
Filed Date: 12/28/1931
Status: Precedential
Modified Date: 6/25/2022
This is an action of tort to recover for damage to the plaintiff’s lobsters stored in lobster cars floating at his wharf on Northern Avenue, in Boston, alleged to have been caused by the defendant’s scraping of refuse matter from under an adjacent wharf known as Fort Hill Wharf. Both wharves abut on Fort Point Channel, a name applied to that portion of Boston Harbor, inside and outside of the harbor line, the harbor line being beyond the wharves in question. A verdict was returned
The first count of the declaration alleges in substance that, in connection with the plaintiff’s business as a dealer in lobsters and within his right as a tenant of the property where his place of business is conducted, he has for a long time maintained lobster cars in the water adjacent to the property for the storage of live lobsters; that on July 17, 1926, and prior thereto, he had live lobsters stored in the cars, and on or about that date the defendant did dredging in the bottom of the channel beside and within a few feet of the cars, and deposited in the hole so dredged refuse matter removed from the bottom of adjacent docks of the garbage transfer station; that this work brought about an unusual condition in the waters whereby they were polluted, and as a result many of the lobsters were killed and others so damaged that they could not be sold at full market price; that the defendant disregarded the rights of the plaintiff and gave no consideration to the fact that its operations might injure the plaintiff’s property; that the defendant was negligent in that it gave no notice to the plaintiff of its intention to commence operations so that the plaintiff might have opportunity to dispose of or remove his goods and that the plaintiff should be reimbursed for the loss sustained by him through the negligence of the defendant.
Fort Hill Wharf is a covered wharf, situated about one hundred feet from the plaintiff’s wharf and place of business. It is owned by the city of Boston and used for the disposal of garbage and other refuse. For many years scows had been pushed under the wharf and refuse matter dumped into them from wagons through a hopper in the flooring of the wharf, and the scows when filled were towed down the harbor. In the filling of the scows soma of the refuse matter fell over the sides thereof, filling the space underneath the wharf, until after a period of time scows could not easily be pushed thereunder and it became neces
On the morning of July 15, 1926, the defendant’s employees towed a large dredger into Fort Point Channel in front of Fort Hill Wharf and commenced operations by dredging a hole at that place. When the hole was completed the work of scraping the refuse from underneath the wharf began. This was done with a rake-like scraper which was pulled under the wharf by an endless chain and then dragged out, this operation of scraping being wholly under water. In this way the refuse matter under the wharf was scraped into the hole previously dug and at a later date loaded into scows and carried down the harbor. The plaintiff had occupied his place of business for about a year under a lease. On the fifteenth, sixteenth and seventeenth of July he had tied up to his wharf four lobster cars, sixteen feet wide, thirty feet long and four feet deep, riding about eight inches above the water. He testified that he knew of nothing to prevent the defendant’s employees from seeing the lobsters being pulled up in the lobster cars; that at times on July 15 and 16, when the dredger was working in front of the wharf, it came as near as twenty feet so that men on the lobster cars and on the dredger talked to each other.
The plaintiff’s evidence tended to prove that on the fifteenth and sixteenth of July, when the defendant was digging a hole near the end of the wharf, the water in the neighborhood of the plaintiff’s place of business was made brown and muddy by the defendant’s dredging, but that there was then no odor from it and the lobsters in the water were not injured; that the plaintiff did not believe that the dredging operations would be harmful to his lobsters; that he did not know that the defendant was going to dig out refuse under the wharf; that he received no notice that such work was to be done, but that on the seventeenth of
The evidence introduced by the defendant tended to prove that the water of the channel was always dirty; that the refuse was carefully scraped from under one slip and put into a hole which it dug; that there was a constant odor at all times from Fort Hill Wharf, and that there drained into Fort Point Channel one brook, four surface drains and thirty or- more sewers; that Fort Point Channel had a dead
This case was considered in Smith v. Bay State Dredging & Contracting Co. 272 Mass. 183, where it was held that the trial judge erred in directing a verdict for the defendant on the plaintiff’s opening statement. In that case the court said that in doing this work the defendant could not create a nuisance and would be liable for negligence.
1. The testimony concerning the events which accompanied or followed the dredging under the wharf and the tainted smell upon the lobsters, when considered in connection with the testimony of the plaintiff that odors are harmful to and may kill lobsters and that in his judgment filth in the water killed them, warranted the jury in finding that the operations of the defendant in raking out the polluting matter under the wharf caused the damage of which the plaintiff complained. The testimony of the plaintiff as to the effect of fresh or warm water on lobsters and that offered by the defendant as to the condition of the water in Fort Point Channel due to causes for which the defendant was not responsible and the defendant’s suggestions as to other possible causes of injury to lobsters did not require a finding in its favor on this issue. The conclusion of the jury that the acts of the defendant caused the damage had a firm basis of fact upon which to rest. The evidence and rational inferences to be drawn therefrom removed the question from the field of conjecture.
2. There was evidence to warrant a finding that the defendant knew or should have known that its dredging operations were likely to cause damage to the plaintiff’s lobsters. The jury would be warranted in finding that the defendant knew or should have known that there were lobster cars with lobsters in them at the plaintiff’s place of business and that it knew or should have known that its operations under the wharf would cause pollution of the water at the place where the lobster cars were floating. Before it caused such pollution of the waters as would kill the lobsters of the plaintiff, it should have ascertained, if it did not know, whether this result would be likely to follow
Because of the inferences which might be drawn from the other testimony in the case, the plaintiff is not bound by the defendant’s answers to interrogatories introduced by the plaintiff to the effect that it had no reason to know that the operations it was about to begin would be claimed to have an adverse effect on any sort of life. On this point the case is distinguishable in its facts from Boudreau v. Johnson, 241 Mass. 12, 15. Upon the testimony of the plaintiff as to what he saw or knew of the defendant’s operations it could not be ruled that the plaintiff had notice that the defendant would be engaged in operations which would so pollute the water as to injure his lobsters or that the defendant was excused from giving notice of the pollution to the water it was about to cause in or near the lobster cars. The case is distinguishable from Hunt v. Economic
3. The court could not have ruled that the plaintiff was guilty of contributory negligence. He testified that the excavating of the hole in front of the wharf which was being done on July fifteenth and sixteenth caused no odor and was not injurious to lobsters and that he did not know that the defendant was going to remove refuse under the wharf until he saw the men engaged in this work on July 17, and it is not clear that the plaintiff knew that work there would produce the damage to lobsters which could have been found to have resulted therefrom. A fair interpretation of the testimony of the plaintiff would not justify us in saying as matter of law that he knew or should have known that the operations of the defendant would or might so pollute the water as to injure the lobsters and that he left them in the cars taking a chance that this result would not happen. At the end of the cross-examination on this subject he testified that he did not know that what was going to be done would hurt the lobsters and he thought “there was no chance.”
The defendant has not shown error of law in the refusal of the trial judge to allow its motion for a directed verdict.
Exceptions overruled.