54 Mass. 292 (Mass. 1847), Drake v. Lowell

Citation:54 Mass. 292
Opinion Judge:Dewey, J.
Party Name:Thomas J. Drake v. City of Lowell
Attorney:Caverly, for the plaintiff. S. Ames, for the defendants.
Court:Supreme Judicial Court of Massachusetts

Page 292

54 Mass. 292 (Mass. 1847)

Thomas J. Drake


City of Lowell

Supreme Court of Massachusetts, Middlesex

October, 1847

Page 293

[Syllabus Material]

Page 294

Trespass upon the case to recover damages for an injury sustained by the plaintiff, by reason of defects and incumbrances in and over a public sidewalk on Merrimack Street in Lowell. Trial before Hubbard, J. who made the following report thereof:

"The defendants admitted that said street, including the sidewalk, was at the time of the injury, and for a long time before had been, a public highway in and through a compact part of Lowell. The plaintiff admitted that the title to the land contiguous to and under the sidewalk, where the injury was received, was in John Nesmith, who erected thereon, several years since, a brick building, containing three stores, fronting and adjoining the said street.

"It appeared that the sidewalk was of brick, fifteen feet in width, and extended along the whole length of the building. It also appeared that in May 1843, one of the tenants, who occupied a store in said building, made and extended from the building, into the street, over the public sidewalk, an awning constructed of boards and pine timber three or four inches square, for shade to the windows and doors of the basement story of the building. The rafters, extending from the building, were supported on the outer edge, towards the centre of the street, by posts standing in the edge of the sidewalk; and both posts and rafters were of the dimensions above named. The awning, on the top, was covered with boards, and was more than fifteen feet wide, and nearly fifty feet in length.

"It was conceded by the parties, that prior to the injury to the plaintiff, the said tenant had removed from the store, leaving the same in the occupancy of another tenant of said Nesmith.

"Evidence was introduced, tending to prove that in the months of November and December 1844, and January 1845, there were several snows, amounting in the whole to the depth of twenty eight inches; and that the last of these snow storms ended on the twenty second day of said January at which time the snow fell to the depth of four inches.

"It further appeared in evidence, that on the evening of the twenty fourth of the same January, the awning, being incumbered with large quantities of snow and ice, fell upon the plaintiff, and crushed him down upon the sidewalk, with the boards, timbers, snow and ice upon him, he being lawfully travelling on foot, in and through said highway; by means...

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