Cavanagh v. Block
| Decision Date | 17 May 1906 |
| Citation | 192 Mass. 63,77 N.E. 1027 |
| Parties | CAVANAGH v. BLOCK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. A. McGeough and W. J. Sullivan, for plaintiff.
Jas. E Young and Fredk. J. Diggett, for defendant.
The plaintiff was injured by falling upon an accumulation of ice on a walk at the side of a private way called 'Humboldt Place.' A block of eight tenement houses was built on one side of this way, close to the line of the sidewalk, along the front of the lots. The defendant's house was No. 6 and, like the others, it occupied the entire front of the lot, which was 21 feet wide. It was a three-story wooden building, with a tar and gravel roof pitching slightly to the front and rear from the ridgepole in the center. The eaves in front extended over the sidewalk about 22 inches from the wall of the house. A gutter was constructed under the eaves in front, with a conductor, which extended down from near the end of the gutter, on the side of the house, and emptied water on the sidewalk. The abutters constructed sidewalks in front of their respective premises, some of brick and others of plank. That in front of the defendant's house was of plank. All the abutters had a right in common to use the way and the sidewalk was used by all abutters and others who had occasion to pass over the way.
The occupant of one of these houses was employed to do dressmaking for the plaintiff and the plaintiff went to the house on this business. She was there by invitation, and was not a mere licensee, if that would make any difference in a case of this peculiar kind, which we do not decide. In passing along the way she stood in the place of an abutter, and in using the walk she was in the exercise of a legal right.
There was evidence for the jury on the question whether she was in the exercise of due care. Shipley v. Proctor, 177 Mass. 498, 59 N.E. 119; Smith v. Lowell, 6 Allen, 40; Frost v. Waltham, 12 Allen, 85; McGuinness v. Worcester, 160 Mass. 272, 35 N.E. 1068.
She was not upon the defendant's premises, and there is no evidence that he was under any legal obligation to keep the way in front of his house safe and convenient for the occupants of other houses, or for those using the way in their right, but it was his duty not to use his own property in such a manner as to create a nuisance on the way. Watkins v. Goodall, 138 Mass. 533. It was his duty not to erect his house so near the way, or to construct gutters or conductors to discharge the water which accumulated on his roof upon the way in such a manner, as to make a dangerous accumulation of ice in winter, which would make the way unsafe for travel.
There was evidence from which the jury might have found that the construction of the house and the gutter and conductor were improper and negligent, in reference to the defendant's duty not to create a nuisance upon property which belonged to others, for use in connection with their respective estates The evidence tended to show that this conductor might be expected to accumulate, and did accumulate, in cold weather a great irregular mass of ice in that part of the way which was designed and fitted for travel. That there is a liability on the part of the owner, to one injured from such a cause, has been decided in many ca...
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