
    Samuel Z. Goldberg vs. R. Federman.
    Suffolk.
    November 13, 1918.
    December 31, 1918.
    Present: Rugg, C. J., Loring, Braley, Pierce, & Cabroll, JJ.
    
      Evidence, Presumptions and burden of proof, Circumstantial. Negligence, Overflowing water.
    In an action, by a wall-paper dealer occupying for storage the third floor of a building against another wall-paper dealer occupying also for storage the fourth floor or loft of the same building, for damage by water to the plaintiff’s wallpaper stock, it appeared that the top or fifth floor had been vacant for about a month, that on the afternoon of the day of the damage the defendant with employees was working in his loft, which he and his employees left at about a quarter to five o’clock, locking the doors, and did not return, that at about half past eight o’clock in the evening of the same day the owner of the building, after finding the doors locked, forced a window in the defendant’s loft and discovered water flowing at full pressure from the faucet into the sink and the sink full of water overflowing upon the floor. The next morning a witness visited the fifth floor above the defendant’s loft and found no signs of water there. The plaintiff’s wall-paper stock was injured by. water from above. Held, that on this circumstantial evidence a finding for the plaintiff was warranted.
    In the case above described the defendant, when called by the plaintiff as a witness, testified that the faucet and sink were used only once during the day of the accident and then by a man working on the outside of the building, who washed blood from his injured hand. Held, that the trial judge was not precluded by this evidence from drawing the inference that the overflowing of the water was caused by negligence of the defendant or of one of his servants.
    Tort for damage by water to the plaintiff’s wall-paper stock stored on the third floor of the building numbered 10 and 12 on Lyman Street in Boston, alleged to have been caused by the negligence of the defendant and, his servants, who occupied the fourth floor of the same building also for the storage of wallpaper. Writ in the Municipal Court of the City of Boston dated December 30, 1916.
    At the trial in the Municipal Court the judge refused to rule upon the evidence, which is described in the opinion, that “On all the evidence the plaintiff is not entitled to recover. ” He found for the plaintiff in the sum of $163.35, and at the request of the defendant reported the case to the Appellate Division. The Appellate Division made an order that the report be dismissed; and the defendant appealed.
    
      E. M. Dangel, for the defendant, submitted'á brief.
    No brief was filed for the plaintiff.
   Rugg, C. J.

This is an action of tort to recover for damages by water to wall-paper stock. The plaintiff and the defendant are competitors in the wall-paper business. The plaintiff occupied the third and the defendant the fourth floor or “loft” of a comparatively new building, each as tenant using the space, for storage. The top or fifth flopr of the building had been vacant for about a month before the eventr here in question. Neither the plaintiff nor the defendant exercised any control over the plumbing, which was under the charge of the owner. On the afternoon of December 27, 1916, an employee of the plaintiff was shipping wall-paper from his loft, leaving the premises about six o’clock, and 'the defendant with employees was working in his loft, which he quitted about a quarter before five o’clock, leaving both doors locked, and did not return. The owner of the building testified that at about half past eight o’clockof the same evening he forced a window in the defendant’s loft, after finding both doors locked, and discovered water flowing from the fahcet into the sink at full pressure and the sink full of water overflowing on to the floor. The next morning a witness visited the fifth floor, but found no signs of water. The plaintiff’s wall-paper stock was injured by water from above.

The grievance of the defendant is a refusal to rule that on all the evidence the plaintiff was not entitled to recover, and a finding for the plaintiff.

There is no error of law on this record. It is the typical case for decision upon circumstantial evidence. It was for the tribunal established to try the facts to draw whatever inference 'seemed most rational from the fact that an open faucet running at full'pressure and overflowing its receptacle was found in a fourth story loft with all doors locked, in the exclusive occupation of the defendant, where he with his servants had been work-l ing and which he had left after locking its doors less than four hours before. The trial judge was not precluded from drawing the inferences which seemed likely simply because the defendant, called by the plaintiff as a witness, .testified that the faucet and sink were used only once during that day, and then by a workman on the outside of the building, who washed blood from his injured hand. The doctrine of Buckland v. New York, New Haven, & Hartford Railroad, 181 Mass. 3, and Winship v. New York, New Haven, & Hartford Railroad, 170 Mass. 464, has no application to the facts here disclosed.

Order dismissing report affirmed.  