345 Mass. 775

February 28, 1963

Exceptions overruled. This is an action of tort for damage by fire to a building and contents owned by the plaintiffs. There was evidence that during a snow storm with accompanying high winds a pole from which service wires carrying electricity came to the plaintiffs' house was caused to lean away from the house about fifteen feet. This resulted in a stretching of the wires, one of which dropped to the ground. A short circuit occurred with a consequent flow of excess current from a transformer on a second pole located some ninety-nine feet from the first. The short circuit could have been generated by the broken wire coming in contact with the snow covered ground or because of an abnormal sag in the wires produced by snow accumulation on them. A fuse on the transformer which was supposed to blow under these conditions failed to do so and there was fed into the plaintiffs' house and wiring system a charge approximating 2,300 volts for a period of fifteen minutes. This caused the fire. A motion for a directed verdict by the defendant was correctly denied. There was evidence on which the jury might have found the defendant negligent. It is not necessary to rely on such cases as Fitchburg Gas & Elec. Light Co. v. Samuel Evans Constr. Co. Inc. 338 Mass. 752. See St. Louis v. Bay State St. Ry. 216 Mass. 255, 257, and cases cited; Burns v. Holyoke St. Ry. 253 Mass. 443, 445. Whether the plaintiffs were guilty of contributory negligence was for the jury. Rasmussen v. Fitchburg Gas & Elec. Light Co. 343 Mass. 515, 519.


345 Mass. 775

March 7, 1963

Exceptions overruled. This is a petition for the assessment of damages under G. L. c. 79 for the taking of a portion of the petitioner's land and buildings in Worcester. The case was tried to a jury. The case is here on the respondent's exceptions. An exception was lodged at the exclusion by the trial judge of testimony on the amount of Federal and State documentary stamps on a deed of the premises, part of which was taken. This deed was given (prior to the taking) to the petitioner by a corporation almost wholly owned by it. The judge ruled that the deed was not the

Page 776

product of an "open sale . . . in the open market" and properly excluded the evidence in the exercise of his sound discretion. Burley v. Old Colony R.R. 219 Mass. 483, 484-485. There was a group of exceptions to questions directed in cross-examination to the respondent's expert. He was asked to assume, in his computation of fair market value after the taking, the assessed valuation and the tax bill on that part of the petitioner's property then remaining. In estimating the value of the taking on the basis of the capitalization of net income, he had earlier testified that expenses after the taking, including the deduction for taxes, remained exactly as they were prior thereto. The judge allowed the line of questions and at the same time instructed the jury that evidence of the assessed valuation after the taking was being allowed "only for the limited purpose of confronting this witness with a different figure on the valuation than he has otherwise testified to in his direct examination." Similar testimony by an assessor of Worcester offered also for the limited purpose of testing the assumptions of the expert was admitted subject to exception. At the conclusion of the trial the judge properly instructed the jury on the introduction of assessed valuations as evidence of fair market value in accordance with G. L. c. 79, Section 35. There was no error. The questions answered by the expert and the assessor were asked for the purpose of testing the valuation placed by the expert on the land taken and the evidence was thus admissible even though it could not be received as evidence of the fair market value of that land. Whipple v. Rich, 180 Mass. 477, 479. Leonard v. Boston Elev. Ry. 234 Mass. 480, 483. There is no merit in the remaining exception taken.