HARVARD FURNITURE CO., INC. vs. CITY OF CAMBRIDGE.

LUMMUS, J. In this action of tort for negligence the declaration contained two counts which differed only in that the first alleged negligence in the construction, maintenance and operation of the defendant's water supply system, while the second alleged negligence in making repairs upon that system. The plaintiff occupied as a tenant a store and the cellar beneath it on the southerly side of Massachusetts Avenue in Cambridge. Its merchandise was damaged in January, 1944, by water that flowed into its cellar through the cellar wall along Massachusetts Avenue. The first such flowing began on January 11, 1944, and the break that caused it, which was in a six-inch cast iron main pipe that ran southerly into Bow Street a little to the east of the plaintiff's store from the ten-inch cast iron main pipe that ran through Massachusetts Avenue, was repaired on January 14, 1944. After a period of quiet, the flow into the cellar resumed on January 27, 1944, and was found to come from a break in the ten-inch main in Massachusetts Avenue, which was repaired on the same day. At the end of the plaintiff's evidence, the judge directed a verdict in favor of the defendant, and the plaintiff excepted.

The law governing the liability of a municipality for a defect in its water supply system differs from the law governing its liability for a defect in a sewer. A municipality is liable

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for the negligent construction or maintenance of a sewer though not for negligent defects in the original plan of the sewer adopted by independent public officers. [Note 1] But in undertaking to supply water at a price, a municipality is not performing a governmental function but is engaging in trade, and is liable just as a private company would be for any negligence in the laying out of its pipes, in keeping them in repair, or in furnishing potable water through them. Hand v. Brookline, 126 Mass. 324. Lynch v. Springfield, 174 Mass. 430. Pearl v. Revere, 219 Mass. 604. Bolster v. Lawrence, 225 Mass. 387, 390. Buono v. Boston, 290 Mass. 59. Sloper v. Quincy, 301 Mass. 20. Horton v. North Attleborough, 302 Mass. 137, 138. Sullivan v. Saugus, 305 Mass. 127. Lucas v. Boston, 313 Mass. 495. See also Goldman v. Boston, 274 Mass. 329; Gerard v. Boston, 299 Mass. 488.

Though the alleged acts of negligence were many and the connection between them was debatable, and the questions of conformity to the standard of care and of causation were difficult, the jury were not given the aid that a reference to an auditor might have afforded. The evidence was presented directly to the jury. We need not recite it in detail.

As the case comes to us, it is not necessary for us to distinguish between counts, or to decide whether on each of the counts the evidence would warrant a finding for the plaintiff, or to inquire whether there was evidence as to both main pipes that negligence caused them to break, or to consider whether any lack of equipment or delay in using equipment could be found negligence that increased the damage. It is enough to sustain the exceptions that somewhere in the record there is evidence of negligence that caused damage to the plaintiff. From the evidence the jury could have found that the six-inch cast iron main broke because it had been negligently allowed to rest upon the top of the concrete subway without a proper cushion of sand or earth to protect it from the vibration caused by trains in the subway.

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Though some of this evidence was apparently hearsay, it remained in the case and is to be considered upon the question of the sufficiency of the evidence to warrant a verdict for the plaintiff. Pochi v. Brett, 319 Mass. 197, 203.

Exceptions sustained.