Opinion
No. 4832.
Argued April 6, 1960.
Decided April 29, 1960.
1. On motions for a nonsuit and directed verdict the evidence will be considered most favorably to the plaintiff, and a jury verdict will not be set aside if reasonable persons could reach the same result.
2. In an action to recover for water damage occasioned to plaintiff's summer cottage when the defendant town opened its water main valve for the summer while plaintiff's service faucets remained open for winter drainage, evidence that the plaintiff had closed a shut-off valve at the junction of the main line and plaintiff's service line a few days prior to the opening of the main line together with a statement of a town water commissioner that a town employee must have mistakenly opened the shut-off valve instead of closing it and the absence of evidence that anyone else would have reason to touch it warranted a finding that the valve was opened by the town employee and that such conduct was negligent.
3. Contributory negligence was not established as a matter of law in such case by the fact that the plaintiff did not close the faucets and drain plugs in his cottage before the town water supply was turned on where he had shut off the service line valve and had experienced no difficulty in previous years in following his usual practice.
4. The defendant was not prejudiced as a matter of law by the fact that the Trial Court read to the jury a portion of plaintiff's declaration which contained an error of fact where the fact was not in issue and the jury which took a view were instructed that it was for them to find the facts.
CASE, for negligence, to recover damages done to the plaintiff's building and contents by water, allegedly resulting from the negligent opening of a valve by an employee of the defendant town. Trial by jury with a view resulting in a verdict for the plaintiff.
The defendant excepted to the admission and exclusion of evidence, to a portion of the Court's charge, to the denial of its motions for a nonsuit and directed verdict, and to set aside the verdict and for a new trial.
The plaintiff was the owner of a summer cottage at Alton Bay, which he had acquired in 1942. Water was supplied to his cottage by the defendant town through a so-called "summer line" which ran above frost level. The water running through this line was shut off each fall and turned on the following spring by a main valve located about half a mile south of the plaintiff's cottage.
He testified that after the water was turned off in the fall of 1954, according to his custom, he opened all the faucets and traps in his cottage in order to drain the pipes and left these open throughout the winter.
The town maintained a shut-off valve to which the pipe carrying the water to the plaintiff's cottage was attached. This valve belonged to the town and was located on state highway property in a culvert in front of the plaintiff's cottage. A town water commissioner testified that the valve was left open the year round, but the plaintiff's evidence was that whenever he returned to his cottage in the spring after water service had been restored, he always found the valve closed. There was a similar shut-off valve located in the same culvert, to which the pipe leading to the cottage of the plaintiff's next door neighbor, Cecil Roberts, was attached. Mr. Roberts' testimony was that he closed his shut-off valve in the fall and always found it closed in the spring, even after the water was turned on. He never observed any employees of the town either opening or closing the shut-off valve leading to his cottage.
It was the custom of the defendant to restore water service in the summer water line each spring around April 19, after the danger of freezing had passed. Herbert Card, superintendent and chairman of the water commissioners and a master plumber by trade, testified that he would station a town employee at the main valve after opening it and then drive his truck with another man along the summer water line, closing drain cocks, which were located at intervals, and checking for leaks. The nearest one to the plaintiff's property was three or four cottages south of his, on the opposite side of the road, and it drained into Lake Winnipesaukee. These drain cocks were customarily opened in the fall to drain water out of the summer line to prevent its freezing. They were then closed in the spring when service was restored. They were separate from the shut-off valves.
Most of the cottages using the summer line service had their own shut-off valves on their own pipes located on their own land. Each one also had a shut-off valve similar to the one leading to the plaintiff's cottage located on the highway or underneath it. The majority of the town shut-off valves were buried under the ground, and their exact location was unknown to the water department. Card testified that the town shut-off valve's primary purpose was to deny water to a customer who had not paid his bill and to stop the waste of water in case of leakage.
Further facts appear in the opinion.
Transferred by Grant, J.
Robert D. Branch (by brief and orally), for the plaintiff.
Nighswander, Lord Bownes (Mr. Bownes orally), for the defendant.
The main issue here is raised by the defendant's exceptions to the denial of its motions for a nonsuit and directed verdict. In passing on this, we must consider the evidence most favorable to the plaintiff (Leonard v. Manchester, 96 N.H. 115), and if reasonable persons could reach the result which the jury did, in the absence of error on other grounds, the verdict must stand. Chase v. Company, 95 N.H. 483.
The plaintiff testified that on April 15, 1955, he went to inspect his cottage and found by examining the town's shut-off valve in the culvert in front of his cottage that the water supply had not been turned on. When he left the premises this valve was closed. He did not close the faucets in his cottage or replace the traps and drain plugs which he had removed the previous fall. He next visited his cottage on April 19, 1955, and found water pouring out of his pipes through the cottage. Thereupon he went down to the town shut-off valve at the street, and finding it open, closed it. He immediately got in touch with one of the town water commissioners, Anderson, who shortly thereafter appeared at the plaintiff's cottage with another commissioner named Beck.
In the course of their conversation, the plaintiff claims one of the commissioners stated that the driver of the truck who, with the superintendent, went around checking the summer line after it was turned on, must have opened the shut-off valve to the plaintiff's cottage instead of closing it.
Although this testimony was vigorously refuted by Card, the superintendent of the water works, he testified that the valve was under the sole control and supervision of the town. There was evidence that it was recessed in a culvert partly hidden by leaves and dirt and not apparent to anyone unacquainted with its location. The record is barren of testimony that any outside person touched the valve or had any reason to do so. In the circumstances, the jury may properly have considered the lack of such evidence significant. See Lamontagne v. Lamontagne, 100 N.H. 237, 238-239.
In summary, the plaintiff testified that the valve was closed on April 15, four days before the damage was discovered and that he found it open on the 19th. In the interim, insofar as the record discloses, no one besides town employees had any reason to touch the valve. This evidence, together with the statement of a commissioner that a town employee must have opened it, raised an issue for the jury to determine who opened the shut-off valve. Any conflicts in the testimony were for them to resolve.
The jury could properly find that the valve was opened by a town employee and that this conduct was negligent since, so far as appears the employee did not know whether the faucets and other water outlets in the plaintiff's cottage were open or closed. In our opinion, handed down in a previous transfer of this case (Sargent v. Alton, 101 N.H. 331), it was not intended to specify, as suggested in the defendant's brief, the "minimum amount of evidence needed by the plaintiff" to support his case. Rather, we stated that if the proof offered by the plaintiff at the previous trial were produced, submission of the issues to the jury would be proper. Although all the proof offered at the previous trial was not submitted at the present trial, nevertheless, it appeared that the evidence received at the present trial was sufficient, and the defendant's motions for a nonsuit and directed verdict were properly denied.
The argument on behalf of the town that the plaintiff must be found guilty of contributory negligence as a matter of law does not require extended consideration. It could be found that he shut off the water to his house when he came up on his inspection tour on the 15th. He had experienced no previous trouble with water escaping in his house over a period of years. When, in the past, on opening his cottage in the spring, he had discovered the main town summer line in operation, he had always found his shut-off valve closed. In these circumstances it cannot be held that he was negligent as a matter of law because he did not close his faucets or replace his traps and drain plugs, and the town's exception to the refusal of the Court so to rule cannot be sustained.
The defendant's final contention is that reversible error was committed by the Court when it read from the plaintiff's declaration that the defendant "did negligently and carelessly turn on the central water valve located on said plaintiff's property." The basis of this argument is that the valve was not on the plaintiff's property and that it was not the central water valve.
However, the Court made it plain in his charge that he was merely reading from the plaintiff's declaration which referred to the opening of the "central water valve located on the plaintiff's property" and also of the "municipal water main leading thereto," and further told the jury that it was for them to find the facts. They had been on a view and the true location of the shut-off valve on state highway property and of the main valve was known to all. Furthermore, the issue was not the location of the valve, but who turned it on. In the circumstances the defendant could not have been prejudiced, and it follows that it takes nothing by this exception. This disposes of all material issues and the order is
Judgment on the verdict.
All concurred.