Home EDWARD A. LAMOINE & another vs. J. J. DOYLE CO. & another.

338 Mass. 793

January 29, 1959

Interlocutory decree affirmed. Final decree affirmed with costs of the appeal to the plaintiffs. These are appeals from an interlocutory decree confirming the master's report and from a final decree granting an injunction against the continuance of a nuisance and awarding damages. The plaintiffs are the owners and occupants of realty on Main Street, Holden; the defendants are the owner and the operator of an asphalt plant on adjacent property. The plant manufactures a paving compound known as "black top" or "hot top." In its operation, quantities of stone dust, a necessary ingredient of the compound, are emitted, borne by the prevailing winds, and deposited upon the plaintiffs' premises, covering their grounds, penetrating the interior of their residences and coating their furnishings with the dust. The plaintiffs' property had been used in part for residences for many years prior to the establishment of the asphalt plant. The record shows an unreasonable interference with the plaintiffs' use and enjoyment of their property and the final decree was correct in finding that the defendants' conduct constituted a nuisance. Boston Ferrule Co. v. Hills, 159 Mass. 147 . Stevens v. Rockport Granite Co. 216 Mass. 436 . Stevens v. Dedham, 238 Mass. 487 . Hakkila v. Old Colony Broken Stone & Concrete Co. 264 Mass. 447 . Shea v. National Ice Cream Co. Inc. 280 Mass. 206 . De Blois v. Bowers, 44 F. 2d 621. The final decree, which awarded damages up to May 1, 1957, the date of the commencement of hearings before the master upon recommittal, was proper in the absence of any demand by the plaintiffs for damages for a subsequent or further period. Collins v. Snow, 218 Mass. 542 , 545. Hakkila v. Old Colony Broken Stone & Concrete Co. 264 Mass. 447 , 450, 453.

Home BARBARA GILES & another vs. ESTHER BARBOSA (and three companion cases).

338 Mass. 793

January 29, 1959

Exceptions overruled. These are actions of tort arising out of a collision of automobiles at the intersection of public highways. The only exception is to permitting the defendant to give her opinion as to the speed of the oncoming automobile as it approached the point of the collision. The evidence was competent. Johnston v. Bay State St. Ry. 222 Mass. 583 , 585-586. Mahoney v. Gooch, 246 Mass. 567 , 569. Gould v. Boston & Maine R.R. 282 Mass. 160 , 167. Logan v. Goward, 313 Mass. 48 , 51. Campbell v. Ashler, 320 Mass. 475 , 477.

Home WILLIAM P. RICE vs. ELLEN C. DE AVILLA, administratrix.

338 Mass. 793

January 30, 1959

Exceptions overruled. In this action of tort the plaintiff had a verdict, which was recorded under leave reserved. The sole question for decision is whether the judge erred in denying the defendant's motions (1) for a directed verdict and (2) to enter a verdict in her favor under leave reserved. We summarize the relevant evidence as follows: The plaintiff, an experienced bricklayer and mason, entered in an agreement with the defendant's intestate (hereinafter called De Avilla) to do certain masonry work on a house that De Avilla was building in Stoneham. Under the agreement De Avilla was to

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furnish and build the staging which the plaintiff was to use. De Avilla erected the staging and on October 12, 1955, the staging appearing "alright" to the plaintiff, he, in De Avilla's presence, went onto the staging to work. The plaintiff weighed 150 pounds. After he had been on the staging from one half to three quarters of an hour, the plaintiff "stepped on the inside plank . . . [and] heard a cracking noise under him like the plank or the staging itself was breaking." This was the first time that he had stepped on this particular plank. To a question whether he was able to tell what part of the staging broke, the plaintiff answered, "I would say the plank I was standing on." There was no error. It would appear that the plaintiff was an independent contractor rather than an employee of De Avilla. But whether he was one or the other is not material, for in either case the defendant's duty would be the same. Keough v. E. M. Loew's, Inc. 303 Mass. 364 , 365. That duty is to use reasonable care to provide the plaintiff with safe appliances. Gauld v. John Hancock Mut. Life Ins. Co. 329 Mass. 724 , 727. The fact that a staging (or a plank thereof) erected by De Avilla of materials furnished by him, and which so far as appears was under his exclusive control, broke shortly after the plaintiff stood on it was sufficient to warrant an inference of negligence on the part of De Avilla either in the erection of the staging or in the selection of materials used. See Brady v. Great Atl. & Pac. Tea Co. 336 Mass. 386 , and cases there collected. We are of opinion that the case at bar is distinguishable from Gauld v. John Hancock Mut. Life Ins. Co. 329 Mass. 724 , on which the defendant heavily relies. In that case a step of a ladder (furnished by the defendant but not shown to be built by it), which the plaintiff had used during three days immediately prior to the accident, broke. The ladder was introduced in evidence and was before us, and it was held that there was nothing about its appearance which would indicate a defect which could have been discovered upon reasonable examination.