Cochran v. Barton
| Decision Date | 17 June 1919 |
| Citation | 123 N.E. 505,233 Mass. 147 |
| Parties | COCHRAN v. BARTON. SAME v. GREENLAW et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Robert F. Raymond, Judge.
Actions of tort by Nellie F. Cochran against Burnham D. Barton and Emma V. Greenlaw and trustee, resulting in directed verdicts for defendants. On report to the Supreme Judicial Court. Judgments ordered to be entered for plaintiff in a certain sum aginst both defendants, plaintiff being entitled to but one satisfaction of judgment in the two cases.
Fowler, Bauer & Kenney and George H. McDermott, all of Boston, for plaintiff.
Charles H. McIntyre and George W. Abele, both of Boston, for defendants.
The plaintiff slipped and fell upon the ice while walking on the easterly sidewalk of Wenham street, Boston, in front of premises of which the defendant Greenlaw was owner and the defendant Barton was lessee. The plaintiffs's due care apparently is not in dispute; no question was raised as to the sufficiency of the statutory notice; and it is stipulated in the report that the plaintiff is to have judgment if the evidence entitled her to go to the jury as against either or both of the defendants.
The principle of law on which the plaintiff bases her claim is the familiar one, that a land owner who collects surface water into an artificial channel, such as a spout, and discharges it upon a public way, where it freezes and makes the use of the way dangerous, is the efficient cause in creating a public nuisance, and is liable for damage resulting therefrom to a traveller using due care. Hynes v. Brewer, 194 Mass. 435, 80 N. E. 503,9 L. R. A. (N. S.) 598;Field v. Gowdy, 199 Mass. 568, 85 N. E. 884,19 L. R. A. (N. S.) 236;Drake v. Taylor, 203 Mass. 528, 89 N. E. 1035;Marston v. Phipps, 209 Mass. 552, 95 N. E. 954.
In support of the plaintiff's contention there was evidence from which the jury could find the following facts: The land of the defendants has a frontage of forty-five feet on Wenham street, and there is a drop of three feet in the grade from the southerly end, at Sunset avenue, to the northerly end of the lot. The house is on an embankment about four feet above the grade of the sidewalk. At the southwesterly corner of the piazza roof is a conductor, and from its base a V shaped wooden trough extends parallel with and to a point about twelve feet distant from the sidewalk of Wenham street, measuring on the slope of the...
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