Shepard v. Creamer

Decision Date27 February 1894
Citation160 Mass. 496,36 N.E. 475
PartiesSHEPARD v. CREAMER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

The instruction complained of was as follows: "The defendant has no right to erect or maintain a building, if it be of no unusual construction, so near the street that snow or ice will fall from it, in the ordinary course of things, so as to endanger travelers in passing; and if the building in question was so constructed and maintained, the defendant would be liable without further proof of negligence."

COUNSEL

H.P. Moulton, for plaintiff.

F.L. Evans and Huntington & Fitz, for defendant.

OPINION

MORTON, J.

The exception to the instruction to the jury cannot be sustained. If the ground of liability is negligence, as the defendant contends it is, then it was negligence to maintain a building so near the street and so constructed that, in the ordinary course of things, snow or ice was liable to fall from the roof upon travelers on the adjoining highway. Smethurst v. Barton Square Church, 148 Mass. 261, 19 N.E. 387; Shipley v. Fifty Associates, 106 Mass. 194. If the defendant was bound, at his peril, to prevent snow and ice from falling from the roof upon those lawfully on the adjoining highway, then the instruction was too favorable to him. If the maintenance of the building as constructed was, as matter of law, negligence, the fact that the roof was constructed in the usual manner, and like that which had been used for many years on a large portion of the buildings on streets in Salem, would not help the defendant. Hill v. Winsor, 118 Mass. 259; Maguire v. Railroad Co., 115 Mass. 239; Hinckley v. Barnstable, 109 Mass. 126.

The description of the defendant as trustee was surplusage. No amendment of the writ was required, and the defendant was not injured by the refusal of the court to rule that the action could not be brought against the defendant as trustee. Association v. McAllister, 153 Mass. 297, 26 N.E. 862.

The testimony of Hart that snow and ice were on the roof the day before the accident, and of Osborne that they were there for two or three days before the accident, was clearly competent. Exceptions overruled.

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44 cases
  • Eisentrager v. Great N. Ry. Co.
    • United States
    • Iowa Supreme Court
    • 13 Diciembre 1916
  • Eisentrager v. Great Northern Railway Co.
    • United States
    • Iowa Supreme Court
    • 13 Diciembre 1916
    ...who creates a nuisance is liable for injury caused thereby, without inquiry as to whether he was negligent--one application, the one in the Shepard case, being to a case where a building put up in such manner and so close to the street that snow and ice will fall from it to the injury of pa......
  • Piff v. Berresheim
    • United States
    • Illinois Supreme Court
    • 22 Marzo 1950
    ...where, in the conduct of his business, a tort injury is committed. Wahl v. Schmidt, 307 Ill. 331, 138 N.E. 604; Shepard v. Creamer, 160 Mass. 496, 36 N.E. 475; O'Malley v. Gerth, 67 N.J.L. 610, 52 A. 563; 1 Perry on Trusts, sec. 321; Restatement of the Law on Trusts, sec. 264. In the presen......
  • Marion v. Chandler
    • United States
    • West Virginia Supreme Court
    • 30 Marzo 1954
    ...'is an accepted doctrine wherever the question has arisen.' An examination of the authorities confirms his statement. See Shepard v. Creamer, Tr., 160 Mass. 496 ; Bannigan v. Woodbury, 158 Mich. 206 , 133 Am.St.Rep. 371, (annotation p. 373); Annotations 7 A.L.R. 408 and 44 A.L.R. 640, respe......
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