Damon v. City of Boston

• Decision Date: 09 May 1889
• Citation: 149 Mass. 147,21 N.E. 235
• Parties: DAMON v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 147

21 N.E. 235

DAMON v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 9, 1889

COUNSEL

Wheelwright & Richardson, for appellant.

Thomas M. Babson, Asst. City Sol., for respondent.

OPINION

C. ALLEN, J.

The want of a railing was the only alleged defect in the way. The plaintiff received her injury by walking off from the sidewalk upon the adjoining land, which was substantially on a level with the sidewalk, and there slipping upon smooth ice, which was covered with snow. The only question is whether the city was bound to put up a railing or fence to guard travelers against peril of this nature, and we are of opinion that it was not. The danger which requires a railing must be of an unusual character, such as bridges, declivities, excavations, steep banks, or deep water. Spaces adjoining roads, streets, and sidewalks, and unsuitable for travel, are often left open in both country and city; and a town or city is not bound to fence against them unless their condition is such as to expose travelers to unusual hazard. Sparhawk v. Salem, 1 Allen, 30, 32; Adams v. Natick, 13 Allen, 429, 431; Marshall v. Ipswich, 110 Mass. 522. The fact is immaterial that there was nothing to mark the line of the highway. Stone v. Attleborough, 140 Mass. 328, 4 N.E. 570; Stockwell v. Fitchburg, 110 Mass. 305. The present case falls within these decisions. The danger was not of such a character that the city was bound to fence against it. It would impose an unreasonable burden upon cities and towns to hold them liable for accidents occurring merely from slipping upon ice upon level ground outside of the limit of the highways. The plaintiff also contends that the defendant is liable at common law; but in this commonwealth no common-law liability rests upon cities and towns in a case like this. In the opinion of a majority of the court the entry must be, judgment affirmed.