Hughes v. City of Lawrence

• Citation: 36 N.E. 485,160 Mass. 474
• Parties: HUGHES v. CITY OF LAWRENCE.
• Decision Date: 27 February 1894
• Court: United States State Supreme Judicial Court of Massachusetts

160 Mass. 474

36 N.E. 485

HUGHES v. CITY OF LAWRENCE.

Supreme Judicial Court of Massachusetts, Essex.

February 27, 1894

COUNSEL

Chas A. De Courcy and Walter Coulson, for plaintiff.

Charles U. Bell and Wilbur E. Rowell, for defendant.

OPINION

MORTON J.

It has been held that a condition of mere slipperiness upon a well-constructed sidewalk, due to natural causes alone, and not to an accumulation of ice and snow, did not constitute a defect in the way, (Stanton v. Springfield, 12 Allen, 566; Billings v. Worcester, 102 Mass. 329,) but that a way would be defective if so constructed, or if its condition was such, that there was, in consequence thereof, some special cause for the collection or formation of ice in a particular locality, and the way was thereby rendered unsafe and dangerous, though the ice was smooth and slippery, and not uneven, or accumulated in ridges, ( Adams v. Chicopee, 147 Mass. 440, 18 N.E. 231; Spellman v. Chicopee, 131 Mass. 443; Fitzgerald v. Woburn, 109 Mass. 205; Pinkham v. Topsfield, 104 Mass. 78; Stanton v. Springfield, supra.) This was held when the liability of cities and towns for defective ways was more stringent than now. We think the same reasons which led to the adoption of the rule then hold good now, but that it should not be extended. The present case is, in some respects perhaps, a close one, but we cannot say that it should not have been submitted to the jury, or that the instructions were erroneous. The gutter extended clear across the sidewalk, and was about fourteen inches wide, and from one to one and a half inches deep, and formed a part of the sidewalk. It was competent for the jury to find that this constituted a defect in the way and that its construction was such as to cause a special deposit of ice at that particular place. Marvin v. City of New Bedford, 158 Mass. 464, 33 N.E. 605, and cases cited; Fitzgerald v. Woburn, supra; Spellman v. Chicopee supra. The case stands differently from what it would if the water, as it discharged from the conductor, spread out over the sidewalk in a thin sheet, and then froze. That would be like Billings v. Worcester, 102 Mass. 329, where it appeared that the sidewalk was properly constructed, unless the slope was too great; and it did not appear what that was. This case resembles, more, Fitzgerald v. Woburn, supra. But there was evidence which would have justified the jury in going even further. The exceptions expressly state that there was "evidence on which the jury might have found that ice had accumulated to the height of a foot or more (it does not appear how much more) at the bottom of the iron conductor, and extending out in the stone gutter, about half way across the sidewalk," losing in thickness as it receded from the conductor, and extending easterly about six feet by the side of the grating, thus forming a mass of ice about six feet square, and partly within, and partly without the limits of the way. There was also evidence on which the jury would have been justified in finding that the sidewalk had been in this condition for a number of days. We cannot say that a mass of ice such as the jury may have found existed was not, as matter of law, an obstruction to public travel, and did not render the way unsafe and defective. Blake v. Lowell, 143 Mass. 296, 9 N.E. 627; Olson v. Worcester, 142 Mass. 536, 8 N.E. 441; Fitzgerald v. Woburn, supra; Adams v. Chicopee, supra. The defendant contended, and there was evidence on which the jury could have so found, that the ice was about an eighth of an inch thick, and extended from the stone gutter a little over six feet easterly, by the side of the grating, to a point opposite a window in the adjacent building, and was three feet or more wide at the east end, and a little narrower where it touched the gutter, and was perfectly smooth and even, and that the plaintiff slipped and fell on the thin ice furthest from the gutter. If this accurately described the condition of the ice and the place where the plaintiff slipped and fell, then she was not entitled to recover. But the plaintiff offered evidence that she slipped and fell as she stepped on the stone gutter with the ice in it, or into the gutter; and it was for the jury to say where the plaintiff slipped and fell. ...