Dahlin v. Walsh

• Decision Date: 18 May 1906
• Citation: 77 N.E. 830,192 Mass. 163
• Parties: DAHLIN v. WALSH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 163

77 N.E. 830

DAHLIN v. WALSH et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 18, 1906

COUNSEL

C. H. Johnson, for plaintiffs.

OPINION

SHELDON J.

The plaintiff does not complain of the ruling of the judge at the trial that she was not entitled to recover against the defendant Walsh, but contends that there was evidence on which the jury might have found in her favor against the defendant Yudelman, who was the tenant and occupant of a store abutting on the sidewalk on which the plaintiff fell. Her contention is that the jury might have found that he had artificially accumulated snow on the sidewalk, which first melted and then froze from natural causes, and so created the condition of things which resulted in her fall. There was some evidence that the defendant had shoveled the snow from the sidewalk, but not for its full width; that he had left a space two or three feet wide on the side of the sidewalk towards the driveway uncleared. It also appeared that the snow was considerably higher in the driveway than on the sidewalk, sloping from the street over the gutter towards and upon the inner side of the sidewalk, and that the snow had melted and flowed towards the outer edge of the sidewalk, and then had frozen, forming a layer of slippery ice sloping from the neighborhood of the curbstone towards Yudelman's store.

It may be assumed that one might be liable for a special and peculiar injury caused by his own creation of a nuisance upon the highway, as by the artificial accumulation of ice and snow upon the sidewalk in front of his premises; and that this liability would extend to the case of one who discharged water upon the sidewalk at a time when the natural result would be to freeze the water and expose travelers upon the sidewalk to the danger of injury from falling. Davis v Rich, 180 Mass. 235, 62 N.E. 375; Leahan v Cochran, 178 Mass. 566, 60 N.E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 506; Shipley v. Proctor, 177 Mass. 498, 59 N.E. 119. If Yudelman did pile up snow upon any part of this sidewalk in such an accumulated mass as essentially to interfere with travel thereon, or by means of the operation of natural causes which he ought to have foreseen to create danger by its melting and freezing, then the plaintiff, if herself in the exercise of due care, could maintain an action against him for a personal injury caused by this conduct on his part. Kirby v. Boylston Market Association, 14 Gray, 249, 251, 74 Am. Dec. 682. And see McMahon v. Lynn & Boston Railroad (Suffolk, April 2, 1906), 77 N.E. 826; McDonald v. Toledo Street Railway, 74 F. 104, 20 C. C. A. 322, 43 U.S. App. 79.

The real question accordingly is whether there was any evidence that Yudelman did pile up the snow...