Bronstein v. Boston & M.R.R.

• Decision Date: 10 March 1934
• Citation: 285 Mass. 491,189 N.E. 617
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BRONSTEIN v. BOSTON & M. R. R.

285 Mass. 491

189 N.E. 617

BRONSTEIN

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Essex.

March 10, 1934.

Exceptions from Superior Court, Essex County; Donnelly, Judge.

Action by Sadye D. Bronstein against the Boston & Maine Railroad. A verdict was directed for defendant on its motion, and plaintiff brings exceptions.

Exceptions overruled.

I. A. Hadley and M. T. Holdsworth, both of Lynn, for plaintiff.

F. P. Garland and J. De Courcy, both of Boston, for defendant.

PIERCE, Justice.

This is an action of tort by which the plaintiff seeks to recover damages at common law for an injury received by her when she slipped upon some ice and fell on the defendant's premises near its viaduct at Lynn, Massachusetts. Due and sufficient notice of time, place and cause of injury was given by the plaintiff to the defendant. The plaintiff's declaration contains one count, alleging that the plaintiff received injuries because of the slippery condition of a sidewalk on the defendant's premises caused by an unnatural accumulation of snow and ice, negligently allowed to remain on the sidewalk, which had been collected and discharged there from the viaduct or elevated structure of the defendant. The defendant's amended answer is a general denial; and it sets up contributory negligence on the part of the plaintiff and denies that the passageway referred to in the declaration was a public passageway.

The material and uncontested evidence discloses that in 1912, 1913 and 1914, as the result of proceedings for the abolition of grade crossings at Lynn, the defendant built a viaduct to carry its tracks through that city. ‘The plaintiff admits that the plans here produced by the city clerk are the plans for the construction of that viaduct in accordance with the acts of 1912, and that the construction as made by the railroad at that time was in accordance with * * * the statute passed in 1912.’ It was undisputed that at the time of the plaintiff's injury this viaduct was owned by the defendant, was in use for railroad purposes, and was upon the land of the defendant; that on February 5, 1929, the defendant was owner of a sidewalk on the northerly side of said viaduct or structure, running from Exchange street near the junction of Union street to the defendant's station in Lynn; that on or about February 5, 1929, the defendant owned a piece of land on the north side of this viaduct which was bounded by Union street, the rear of the Faben block, so called, and the viaduct, said land being known as part of the depot yard; that on or about February 5, 1929, the defendant owned a passageway running from the Mt. Vernon street or Cosgrove Square, so called, side of the viaduct, beneath the overhead part of the viaduct toward the depot yard and Union street side of the viaduct; that the viaduct was so constructed that there was incorporated therein a drainage system for the purpose of caring for any water which accumulated upon said structure; that on or about February 5, 1929, the defendant was leasing certain portions of the viaduct or structures, and upon parts of the portions so leased there were stores, some in the above-mentioned passageway and some on the northerly sidewalk already referred to; that the part of the viaduct which is material to this action consisted of arches of reinforced concrete running north and south, on top of which were the tracks and platforms running east and west; that the concrete structure as a whole was roughly rectangular in shape and ran, as did the tracks it carried, east and west.

On February 5, 1929,...