Davis v. Rich
| Decision Date | 02 January 1902 |
| Citation | 180 Mass. 235,62 N.E. 375 |
| Parties | DAVIS v. RICH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alonzo
D. Moran, for plaintiff.
I. R Clark, for defendant.
This is an action for personal injuries caused by slipping upon a ridge of ice on a sidewalk and falling. There was evidence that the alleged ridge of ice was formed by the freezing of water from a pipe leading from a gutter to a sewer, that the water escaped through a hole in the pipe, or overflowed from the gutter and ran down the pipe on the outside, or in some way was discharged by the pipe upon the sidewalk. The pipe was in the defendant's control. The plaintiff had a verdict, and the case is here on the defendant's exceptions to rulings and refusals to rule.
The plaintiff requested the following instructions: It is stated that the court gave these instructions, adding as to the eleventh that he gave it with the qualification he had already given. And although the qualification referred to was attached specifically only to the eleventh, it is manifest on reading the portions of the charge which are printed that the other rulings also were not left in vacuo as naked, abstract propositions, but were given subject to other requirements repeatedly stated by the judge. Even taking the instructions by themselves, it is not clear that they mean anything more than a statement of the defendant's duty when he knows the conditions. The words 'in the natural course of events' in number 4, and 'maintained' in number 11 point to that interpretation and do not suggest a requirement that the defendant should know at once and at his peril any leak that the spout might spring. Indeed the eleventh request may perhaps be taken to refer to maintaining the pipe so as to discharge from its mouth upon the sidewalk by deliberate arrangement, as one witness said that it had done. When the defendant does know the conditions, he is bound at his peril to prevent the result. See Lion v Railway Co., 90 Md. 266, 274, 44 A. 1045, 47 L. R. A. 127. But the course of the charge should be considered before deciding whether the defendant suffered any wrong. We therefore turn to that. After explaining the requirement of due care on the plaintiff's part, the judge stated as the next thing to be proved in order to charge the defendant, that there was a nuisance on the sidewalk, and that that nuisance was due to the neglect of the defendant to do what he reasonably could have done to prevent it. Then in more specific form he stated that if the jury found that the ice was a nuisance the question was whether it was produced by water coming from the spout, and then that it must have been a nuisance produced by some defect in the spout or in the gutter near the head of the spout such that water 'would not naturally be carried off.'
The meaning of this is perfectly plain. It was left to the jury to find whether there was a nuisance, and if so whether it was due to a defect, and if so whether the defect was of such a nature that it naturally would produce the nuisance supposed. The word 'naturally' imported that the result must be one which manifestly would come to pass according to common experience if the defect was allowed to remain. A defect in an outside gutter or spout which naturally would produce a nuisance necessarily would be of a certain magnitude and would be visible on inspection.
The judge then went on to say that the defendant was bound to construct the spout in the first place and to maintain it afterwards in such a manner as to carry off the water so as not to conduct it upon the sidewalk and to create a nuisance. These words, like the requests, probably referred to the defendant's liability in cases where his knowledge of the actual condition of the pipe or his duty to know it would be indisputable. The original plan of construction he would be assumed to know if he constructed the pipe, and the word 'maintain'...
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