Home DELINA PAUL vs. THEODORE DESROSIERS.

346 Mass. 781

January 6, 1964

Exceptions overruled. There was no error in entering a verdict for the defendant under leave reserved. The jury could have found that the plaintiff's fall resulted from the absence of a string to operate the light fixture over the second floor landing in a house owned by the defendant in which the plaintiff occupied the third floor apartment. There was no evidence of an express undertaking to light the common stairway. The jury could also have found that a string had been in place when the plaintiff's tenancy began, that from time to time the string was pulled off and thereafter replaced either by the plaintiff, the defendant's son, who was the tenant of the second floor apartment, or by unidentified persons. There was evidence that the light was connected with the meter of the second floor tenant and there was no contrary evidence. This, together with the evidence that the defendant on one occasion said he would put the string on and thereafter "a string was put on," was insufficient to show that the defendant had a duty to maintain a string on the light fixture. Compare Coan v. Adams, 332 Mass. 654 , 656-657, and cases cited (light under control of the defendant).

Home ALFRED S. GERMANA & another vs. GIACINTO L. FAZIO & another.

346 Mass. 781

January 6, 1964

Interlocutory and final decrees affirmed with costs of this appeal. There is no error in the final decree which ordered the defendants to remove dirt and debris from the plaintiffs' land, enjoined the defendants from permitting such material to "escape, spread, fall or be washed onto" the plaintiffs' land, and ordered the payment of damages. The decree is supported by the master's findings that the defendants acted negligently in placing a quantity of fill on their land without taking reasonable precautions to prevent its going upon and injuring the plaintiffs' land, and in damaging it and causing the plaintiffs loss in the amount ordered paid in the final decree. That much of the fill was moved by Hurricane Donna in September, 1960, does not vitiate the finding of negligence. The master found that, during a preceding light rain, fill washed onto the plaintiffs'

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land. Nothing in the report bars the conclusion that the defendants' negligence was one cause and a proximate cause of the entire damage.