De Courcy, J.
This is an action of tort for damages to the property of the plaintiffs, including the buildings known as the Hotel Oxford and the Oxford Terrace, situated on Huntington Avenue in Boston and adjoining the tracks of the defendant’s lessor, the Boston and Albany Railroad Company. The first count, on which the plaintiffs elected to go to the jury, alleged that during the six years previous to December 1, 1909, the defendant “unreasonably, carelessly and unlawfully operated locomotives,” and “has caused an unreasonable and unnecessary discharge of smoke, soot, cinders, anfl noxious fumes from said locomotives.” The claim of injury from noise, which was included in the specifications, was waived at the close of the evidence.
The case was referred to an auditor and later a trial was had in the Superior Court. A special question on the issue of liability and four questions on the issue of damages were submitted to and answered by the jury. Thereupon the presiding judge, without objection or exception, directed a verdict for the plaintiffs based upon the answers to questions numbered three- and four, and ruled that they could not recover for the damage to the outer walls and for the cost of removing the old dining room in the Hotel Oxford, to which questions numbered one and two related.
[16]*16We consider first the exceptions of the defendant, and in the order argued in its brief.
1. The two plaintiffs were in legal contemplation but one party, and were entitled to challenge, only two jurors peremptorily. Stone v. Segur, 11 Allen, 568. But in view of the judge’s opinion, that the plaintiffs were liable not to have a fair trial if the juror improperly challenged should remain on the panel, (an opinion warranted by the statement of counsel as to the remark made by that juror,) we cannot say that the informal exercise of his discretion by the judge (see R. L. c. 176, § 28) was prejudicial error. R. L. c. 176, § 32. Commonwealth v. Livermore, 4 Gray, 18.
2. The defendant contends that its rights were seriously affected by the successive rulings of the judge relative to the auditor’s report, and that in any event the judge should have withdrawn from the jury those portions referred to in its fifth and eighth requests for rulings. Many passages were eliminated from the report, but at'the request of the defendant the eliminated passages were read to the jury. It was contended that the opening of Trinity Place station for public use in the year 1900 greatly altered the relation of the plaintiffs’ property to the railroad. The judge excluded the first portion of said fifth request, “The jury should disregard the views of the auditor as set forth in his supplemental report as to the construction of the act of the Legislature and of the law under which the Trinity Place and Huntington Avenue stations were built and used.” And it seems apparent, from an examination of the charge, that the remainder, “and his finding that the operations of the railroad in connection with such stations were unnecessary and avoidable,” Was presented to the jury as referring only to the unnecessary smoke, soot and cinder,s. As to the requests numbered eight, all were given except eight (a) ; and here also “the operations of the railroad in connection with the Trinity Place station” were confined to the unnecessary and avoidable smoke. It should be added that the court instructed the jury with much detail to disregard the auditor’s rulings of law, and all his findings with reference to or so far as they related to the second and third counts. And the report itself did not go to the jury room. These exceptions must be overruled.
3. At the close of the judge’s charge counsel for the defendant called attention to the specifications as affecting the question of [17]*17liability, to the subject of the non-production of documents, and also to the failure to give many of the rulings requested; and several exceptions were taken. Many of these exceptions have not been argued, and presumably are waived; and only three requests (62-64) are specifically referred to. The question was: "Did the defendant, during the period from December.1,1903, to December 1, 1909, substantially continuously emit upon and into the plaintiffs’ buildings, known as the Hotel Oxford and the Oxford Terrace, from the stacks of locomotives on its location adjoining the said buildings, considerable quantities of smoke, soot, and cinders which it was unnecessary to emit in the reasonable operation of . said locomotives and in the reasonable transaction of the defendant’s business under its franchise? ” See Mellen v. Western Railroad, 4 Gray, 301; Hearst v. New York Central & Hudson River Railroad, 215 N. Y. 268; Aldworth v. Lynn, 153 Mass. 53. In view of the evidence and the care with which the judge defined “substantially continuously,” in connection with the specifications filed, no error is shown in this respect. The same is true of what the judge said on the subject of the non-production of documents, and of the peculiar position of the plaintiffs’ property with reference to the railroad location.
The complaint that -the charge did not sufficiently instruct the jury to disregard the evidence as to noise (the claim of damages therefor having been eliminated) does not seem to uswell founded. They were instructed in express terms not to allow that evidence to influence them; and many times it was emphasized that the questions before them related only to the unreasonable and unnecessary excess of smoke, soot and cinders. In short, after an examination of the record we cannot say that the subject matter of the requests for rulings, so far as accurate and applicable, was not sufficiently covered in the charge. It would serve no useful purpose to consider them in detail and to quote the portions of the lengthy charge applicable to each.
In the course of a trial lasting six weeks, and complicated by the elimination of two counts in thé declaration and of much of the auditor’s report, it was doubtless difficult for the jury to discriminate and to disregard impressions that were not applicable to the simple and narrow issues finally submitted to them. But as a practical matter, if it appeared to the presiding judge that the [18]*18defendant’s rights had not been properly safeguarded by the jury, it is to be presumed that the motion for a new trial would have been granted.
4. As to the remaining exceptions of the defendant: There was no error in the exclusion of the question to the witness Matthews, on cross-examination, as to his application for an abatement of taxes, in 1910, on other properties not nearer than a quarter of a mile to the property here in question, on other streets and not affected by the railroad. It was immaterial to the issues on trial, and the judge well might conclude that it had no direct tendency to contradict the testimony of the witness. The testimony of the witness Larry in redirect examination, that in July, 1908, he observed about one hundred engines on the New .Haven road, in the vicinity of Cumberland and Durham streets, was made admissible by the earlier question of the defendant’s counsel, “You have observed smoke on other roads coming into Boston, I suppose, entering Boston? ” and the answer “On the New York, New Haven, & Hartford, yes.” See Shepard v. Hill, 151 Mass. 540, 542.
Free access — add to your briefcase to read the full text and ask questions with AI
De Courcy, J.
This is an action of tort for damages to the property of the plaintiffs, including the buildings known as the Hotel Oxford and the Oxford Terrace, situated on Huntington Avenue in Boston and adjoining the tracks of the defendant’s lessor, the Boston and Albany Railroad Company. The first count, on which the plaintiffs elected to go to the jury, alleged that during the six years previous to December 1, 1909, the defendant “unreasonably, carelessly and unlawfully operated locomotives,” and “has caused an unreasonable and unnecessary discharge of smoke, soot, cinders, anfl noxious fumes from said locomotives.” The claim of injury from noise, which was included in the specifications, was waived at the close of the evidence.
The case was referred to an auditor and later a trial was had in the Superior Court. A special question on the issue of liability and four questions on the issue of damages were submitted to and answered by the jury. Thereupon the presiding judge, without objection or exception, directed a verdict for the plaintiffs based upon the answers to questions numbered three- and four, and ruled that they could not recover for the damage to the outer walls and for the cost of removing the old dining room in the Hotel Oxford, to which questions numbered one and two related.
[16]*16We consider first the exceptions of the defendant, and in the order argued in its brief.
1. The two plaintiffs were in legal contemplation but one party, and were entitled to challenge, only two jurors peremptorily. Stone v. Segur, 11 Allen, 568. But in view of the judge’s opinion, that the plaintiffs were liable not to have a fair trial if the juror improperly challenged should remain on the panel, (an opinion warranted by the statement of counsel as to the remark made by that juror,) we cannot say that the informal exercise of his discretion by the judge (see R. L. c. 176, § 28) was prejudicial error. R. L. c. 176, § 32. Commonwealth v. Livermore, 4 Gray, 18.
2. The defendant contends that its rights were seriously affected by the successive rulings of the judge relative to the auditor’s report, and that in any event the judge should have withdrawn from the jury those portions referred to in its fifth and eighth requests for rulings. Many passages were eliminated from the report, but at'the request of the defendant the eliminated passages were read to the jury. It was contended that the opening of Trinity Place station for public use in the year 1900 greatly altered the relation of the plaintiffs’ property to the railroad. The judge excluded the first portion of said fifth request, “The jury should disregard the views of the auditor as set forth in his supplemental report as to the construction of the act of the Legislature and of the law under which the Trinity Place and Huntington Avenue stations were built and used.” And it seems apparent, from an examination of the charge, that the remainder, “and his finding that the operations of the railroad in connection with such stations were unnecessary and avoidable,” Was presented to the jury as referring only to the unnecessary smoke, soot and cinder,s. As to the requests numbered eight, all were given except eight (a) ; and here also “the operations of the railroad in connection with the Trinity Place station” were confined to the unnecessary and avoidable smoke. It should be added that the court instructed the jury with much detail to disregard the auditor’s rulings of law, and all his findings with reference to or so far as they related to the second and third counts. And the report itself did not go to the jury room. These exceptions must be overruled.
3. At the close of the judge’s charge counsel for the defendant called attention to the specifications as affecting the question of [17]*17liability, to the subject of the non-production of documents, and also to the failure to give many of the rulings requested; and several exceptions were taken. Many of these exceptions have not been argued, and presumably are waived; and only three requests (62-64) are specifically referred to. The question was: "Did the defendant, during the period from December.1,1903, to December 1, 1909, substantially continuously emit upon and into the plaintiffs’ buildings, known as the Hotel Oxford and the Oxford Terrace, from the stacks of locomotives on its location adjoining the said buildings, considerable quantities of smoke, soot, and cinders which it was unnecessary to emit in the reasonable operation of . said locomotives and in the reasonable transaction of the defendant’s business under its franchise? ” See Mellen v. Western Railroad, 4 Gray, 301; Hearst v. New York Central & Hudson River Railroad, 215 N. Y. 268; Aldworth v. Lynn, 153 Mass. 53. In view of the evidence and the care with which the judge defined “substantially continuously,” in connection with the specifications filed, no error is shown in this respect. The same is true of what the judge said on the subject of the non-production of documents, and of the peculiar position of the plaintiffs’ property with reference to the railroad location.
The complaint that -the charge did not sufficiently instruct the jury to disregard the evidence as to noise (the claim of damages therefor having been eliminated) does not seem to uswell founded. They were instructed in express terms not to allow that evidence to influence them; and many times it was emphasized that the questions before them related only to the unreasonable and unnecessary excess of smoke, soot and cinders. In short, after an examination of the record we cannot say that the subject matter of the requests for rulings, so far as accurate and applicable, was not sufficiently covered in the charge. It would serve no useful purpose to consider them in detail and to quote the portions of the lengthy charge applicable to each.
In the course of a trial lasting six weeks, and complicated by the elimination of two counts in thé declaration and of much of the auditor’s report, it was doubtless difficult for the jury to discriminate and to disregard impressions that were not applicable to the simple and narrow issues finally submitted to them. But as a practical matter, if it appeared to the presiding judge that the [18]*18defendant’s rights had not been properly safeguarded by the jury, it is to be presumed that the motion for a new trial would have been granted.
4. As to the remaining exceptions of the defendant: There was no error in the exclusion of the question to the witness Matthews, on cross-examination, as to his application for an abatement of taxes, in 1910, on other properties not nearer than a quarter of a mile to the property here in question, on other streets and not affected by the railroad. It was immaterial to the issues on trial, and the judge well might conclude that it had no direct tendency to contradict the testimony of the witness. The testimony of the witness Larry in redirect examination, that in July, 1908, he observed about one hundred engines on the New .Haven road, in the vicinity of Cumberland and Durham streets, was made admissible by the earlier question of the defendant’s counsel, “You have observed smoke on other roads coming into Boston, I suppose, entering Boston? ” and the answer “On the New York, New Haven, & Hartford, yes.” See Shepard v. Hill, 151 Mass. 540, 542. The table showing the gross receipts of the Hotel Oxford from 1885 to 1898 having been put in evidence by the defendant, the plaintiffs were allowed to read the column of payments for taxes, etc., as prepared by the defendant’s expert. It is enough to say as to the exception taken thereto, that the entire paper later was put in evidence without objection. Finally, the evidence as to the extent of damage to the furniture', even if inadmissible, having gone'in without objection, could be properly considered by the jury. Damon v. Carrol, 163 Mass. 404. Rapson v. Leighton, 187 Mass. 432. Orpin v. Morrison, 230 Mass. 529. It follows that the exceptions of the defendant must be overruled.
We next consider the exceptions of the plaintiffs.
1. There was no error in the ruling that the plaintiffs could not recover for the cost of removing the dining room in the Hotel Oxford. The wrongful acts of the defendant were of a temporary nature. If during their continuance-the plaintiffs could not use the fHm'ng room, the loss occasioned thereby was an element to be included in the diminished rental value of the premises, and was temporary, being limited to the period of unnecessary and avoidable smoke during the six years in question. The change of location would become unnecessary when the defendant resumed the [19]*19operation of its railroad in a normal and non-negligent manner. For the expense of this permanent change in the premises the defendant is not liable in this action.
2. To the special question “What is the amount of the damage, if any, done to the outer walls of the Hotel Oxford and the Oxford Terrace as the direct result of the defendant’s wrongful emission, if any, of smoke and soot upon said walls during the period December 1, 1903, to December 1, 1909?” the jury answered “$1,812.50. No interest.” The first exception is to the judge’s ruling that the plaintiffs could not recover on this item.
If one of the direct results of the defendant’s wrongful acts was to blacken the walls by a deposit of soot, the plaintiffs were entitled to damages therefor. That element of damages was not necessarily included in the fourth question, which dealt with the diminution of rental value, and as matter of fact was not treated at the trial as so included. Parker v. American Woolen Co. 215 Mass. 176, 182. Emery v. Lowell, 109 Mass. 197. The exception to this ruling w,as well taken.
The record discloses however that there was evidence that it would cost $2,500 to clean off the accumulation of soot, etc., which would arise in the six years prior to the date of the writ. We cannot say that the court was wrong in admitting this testimony from a witness who had some practical experience in such matters on different buildings, and who had made investigation and obtained estimates as to this cost. The jury also viewed the premises. It seems to us that a new trial on this subordinate item of damages is unnecessary; and that the sum found by the jury ($1,812.50) should be added to that of the general verdict ($76,173.42) and that judgment should be entered for the plaintiffs as upon a verdict for the combined amount. St. 1913, c. 716, § 2. See Simmons v. Fish, 210 Mass. 563; Burke v. Hodge, 211 Mass. 156; Randall v. Peerless Motor Car Co. 212 Mass. 352, 391.
Ordered accordingly.