Berrenberg v. City of Boston

• Decision Date: 09 May 1884
• Citation: Berrenberg v. City of Boston, 137 Mass. 231 (Mass. 1884)
• Parties: Martha Berrenberg v. City of Boston
• Court: Supreme Judicial Court of Massachusetts

137 Mass. 231

Martha Berrenberg v. City of Boston

Supreme Court of Massachusetts

May 9, 1884

Norfolk. Tort for personal injuries occasioned to the plaintiff by a defect in Perkins Street in the defendant city. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:

There was evidence on the part of the plaintiff that the injury was caused by ridges of ice, five or six inches high, on the inner side of a sidewalk, substantially level on either side of said ridges, over which she was walking with due care on February 11, 1883; that said ridges were caused by water or melted snow, frozen on the sidewalk, as it flowed thereupon from higher adjacent land (a pasture) from which there was an open cart-path to the sidewalk, at the point where the ridges were.

The plaintiff contended that the situation of the sidewalk, at the place of her injury, was such, with reference to the adjacent higher land and cart-path, that ice in ridges, from frozen water and melted snow, descending by the cart-path were habitually on the sidewalk.

The plaintiff was allowed, against the objection of the defendant, to put in the testimony of two witnesses as to the thickness, and other dimensions and appearance, of the surface of ice at the place, on February 28, 1883, seventeen days after the accident; and of another witness as to the appearance, shape, and thickness of ice, on March 2, 1883 nineteen days after the accident, although there was evidence of snow and rain storms and of great changes of temperature between said dates. The last-named witness was also allowed against the defendant's objection, to testify as to measurements made by him on March 2, 1883, of the height slope, and surface of the ground, in a field adjacent to the highway, at a point more than twenty-five feet distant from the line of the highway; no evidence being offered as to whether or not there had been any change made by nature or the landowner in the surface between the time of the measurement and the time of the accident. The case was submitted to the jury under instructions which were not excepted to.

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the admission of the above evidence.

Exceptions overruled.

T. M. Babson, for the defendant.

F. D. Ely, for the plaintiff.

OPINION

C. Allen J.

The bill of exceptions does not undertake to give...