Bamberg v. Bryan's Wet Wash Laundry

• Decision Date: 12 September 1938
• Citation: 301 Mass. 122,16 N.E.2d 653
• Parties: DORA BAMBERG v. BRYAN'S WET WASH LAUNDRY INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 122

16 N.E.2d 653

DORA BAMBERG v. BRYAN'S WET WASH LAUNDRY INC.

Supreme Judicial Court of Massachusetts, Suffolk.

September 12, 1938

October 4, 1937.

Present: FIELD, C.

J., DONAHUE LUMMUS, & QUA, JJ.

Snow and Ice. Negligence, One owning or controlling real estate. Nuisance. Way, Public: nuisance.

A landowner was not liable to a traveller on a public sidewalk, which abutted on his land and on which snow had fallen naturally and had been allowed to remain, for personal injuries suffered in a fall due to deep, frozen ruts made several days before by a truck of a coal company delivering coal to the landowner, the operator of the truck not being the landowner's agent nor subject to his control while on the sidewalk.

TORT. Writ in the Municipal Court of the West Roxbury District of the City of Boston dated April 23, 1936.

There was a finding for the plaintiff in the sum of $750 by Deland, J. A report to the Appellate Division for the Southern District was ordered dismissed. The defendant appealed.

J. W. Lobdell, for the defendant. S. H. Kugell, for the plaintiff, submitted a brief.

DONAHUE, J. The plaintiff, on February 4, 1936, fell and was injured while walking on a public sidewalk abutting the rear of premises occupied by the defendant. At the place of the plaintiff's fall there was a driveway entrance for vehicles from the street to an open area on the rear portion of the defendant's premises. On January 29,

1936, as the result of earlier snow storms, the sidewalk was covered with snow and ice. The snow, which had not been shovelled, was about a foot deep. On that day trucks of a company engaged in selling coal had delivered coal to the defendant. The trucks had been driven across the sidewalk at the driveway entrance and made ruts in the snow of a depth of about ten inches. These ruts froze and continued to be on the sidewalk up to and including the day of the plaintiff's injury. The ruts were the cause of the plaintiff's fall. There was no defect in the surface of the driveway itself. No question is raised as to the due care of the plaintiff.

The plaintiff's declaration alleged "negligent conduct of the defendant its agents or servants, in permitting, for a long time, an accumulation of snow and ice on said sidewalk and subsequently permitting its trucks, or trucks of invitees from time to time, to cross said sidewalk . . . thereby creating deep and dangerous ruts" and in negligently permitting "said defective condition to remain for a long period of time."

The case was tried in the Municipal Court of the West Roxbury District of the City of Boston. The judge there found the facts above related and further found that "the defendant was negligent in allowing this condition of its sidewalk to continue and that by such negligence the plaintiff without fault was injured." The judge made a finding for the plaintiff and reported to the Appellate Division his rulings and refusals to rule as requested. Among the rulings requested by the defendant and refused by the judge was: "As a matter of law, there is no evidence of negligence of the defendant ." The Appellate Division ordered...