Bullard v. Mattoon

• Decision Date: 02 April 1937
• Citation: 8 N.E.2d 348,297 Mass. 182
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BERTHA E. BULLARD v. MAY MATTOON & another.

297 Mass. 182

8 N.E.2d 348

BERTHA E. BULLARD v. MAY MATTOON & another.

Supreme Judicial Court of Massachusetts, Berkshire.

April 2, 1937

April 9, 1936.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & DONAHUE, JJ.

Way, Public nuisance. Snow and Ice. Nuisance. Negligence, Of person owning or controlling real estate.

A building so constructed that water dripped from overhanging portions of the building to the public sidewalk, where it froze and formed a dangerous accumulation of ice, constituted a nuisance, and a pedestrian who fell thereon and was injured could recover from one owning or in control of the building without proof of specific negligence in the construction or maintenance of the building.

TORT. Writ in the Superior Court dated May 20, 1932. The action was tried before T. J. Hammond, J. There was a verdict for the defendant. The plaintiff alleged exceptions.

The plaintiff's first and second requests for rulings of law, referred to in the opinion, were as follows:

"1. The land owner, in possession of his premises, who collects water into a definite channel in any manner and pours it upon a public way whereby, through the operation of natural causes, ice there forms, it is the efficient cause in the creation of a nuisance and he is liable for whatever damage results as a probable consequence.

"2. If the defendant maintains a building with a cornice or window ledges or sills so constructed and located that, through the operation of natural causes, an icy and dangerous condition of the sidewalk would and did result, and the condition had existed for a long time so that the defendant knew or should have known of it, then the defendant is liable to one who, in the exercise of due care, slips and is injured on ice so formed upon the sidewalk."

D. A. Foley, for the plaintiff. M. B. Warner, for the defendants.

DONAHUE, J. The plaintiff testified that, while walking on the sidewalk on a public highway in Pittsfield, she slipped on an accumulation of ice three or four inches high, fell and was injured. It was agreed that adjoining the sidewalk was a building owned by the defendants, the wall of which was built substantially on the street line, that is, on the inner line of the sidewalk. It was also agreed that, over a plate glass window on the side of the building nearest the street, there was a projecting cornice, nine feet long and one foot wide, which overhung the sidewalk and that on the second floor of the building just beyond the end of the cornice there were two windows under each of which was a granite ledge three feet long, the outer edges of which projected over the sidewalk about an inch. There were no gutters or conductors on the street side of the building.

There was testimony that at the time of the plaintiff's injury there was snow on the cornice and on the window ledges and icicles were hanging therefrom; that water from the melting snow was dripping from the icicles; and that there was a ridge of ice underneath on the sidewalk running parallel with the building. There was evidence warranting the conclusion that the ridge of ice had been formed by water dropping from the icicles on the cornice and window ledges and freezing on the sidewalk and that the plaintiff's injury was due to slipping on a mound-shaped area of ice which was part of that ridge. There was evidence that the structural condition of the side of the building nearest the sidewalk had been the same for twenty-six years, that the defendants' agent in charge of the premises was at the building each day and that a similar ridge of ice had been formed on the sidewalk at an earlier time on a day following a snow storm. There had been a six-inch fall of snow the night before the plaintiff's injury and a similar fall of snow two nights before. The bill of exceptions recites that the only questions raised by the exceptions relate to the judge's instructions to the jury, his refusals to instruct the jury as requested by the plaintiff and his exclusion of certain evidence offered by the plaintiff.

The case was tried in the Superior Court and there was a verdict for the defendants. The plaintiff excepted to the refusal of the judge to give her first and second requests and to a portion of the judge's charge pertaining to the same subject matter. These are the only exceptions argued before us.

In the course of his charge the judge instructed the jury "as a matter of law," that if a landowner in possession of property "by negligent act in construction, collects water into a definite channel in any way and then turns it out on the highway or a street where, through the operation of natural causes, ice forms, it then becomes, or may become, under some circumstances, a condition which the jury might say was a nuisance, and if an individual does that, of course he is liable to any damage that results from maintaining a nuisance." The plaintiff concedes in her brief that if the words "by negligent act in construction" were omitted this portion of the charge would be in substantial accord with her first request for a ruling.

Following the portion of the charge above quoted the judge went on to say: "Or if the defendant maintains a building with structures or anything added to it so that those structures, through either improper or negligent construction or improper and negligent maintenance, cause water to flow in channels other than the usual channels, and it flows out on the sidewalk and freezes and then causes injury to a person, the plaintiff can recover." The plaintiff concedes in her brief that this statement would be substantially in accord with her second request if the words "through either improper or negligent construction or improper and negligent maintenance" were omitted.

At the close of the charge the plaintiff's attorney claimed exceptions "to that part of your charge where you said the plaintiff must prove negligence in the construction" or maintenance of the building and to the failure of the judge to grant his requests for...