O'donoghue v. Moors

• Decision Date: 04 April 1911
• Citation: 208 Mass. 473,94 N.E. 749
• Parties: O'DONOGHUE v. MOORS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 473

94 N.E. 749

O'DONOGHUE v. MOORS.

Supreme Judicial Court of Massachusetts, Norfolk.

April 4, 1911

COUNSEL

Francis Hurtubis, Jr., and G. H. Power, for plaintiff.

Henry C. Sawyer, for defendant.

OPINION

SHELDON, J.

There was neither averment nor proof that the plaintiff had given notice to the defendant of the time, place and cause of her injury. St. 1908, c. 305.

This is fatal to the maintenance of her action. Baird v. Baptist Society (Essex, Feb. 28, 1911) 94 N.E. 296. But as we doubt whether this point was brought to the attention of the judge at the trial, or was intended to be covered by the defendant's request that a verdict be ordered in his favor, we prefer not to decide the case upon that ground.

There was no evidence of the breach of any duty owed by the defendant to the plaintiff. The defect upon the walk on which she fell was due entirely to natural causes, the combination of rain and snow with freezing weather. He had made no agreement and there was nothing to show any duty on his part to guard against or to remedy such a condition. Nothing had been done to the sidewalk since the storm that was testified to. The snow and ice had not been alternately trampled upon and frozen as in Urquhart v. Smith & Anthony Co., 192 Mass. 257, 78 N.E. 410, and any rough or hubbly condition that existed must be taken to have been due solely to the weather. There was no evidence of any custom or practice as to cleaning or sanding the walk, as there was in Nash v. Webber, 204 Mass. 419, 90 N.E. 872. The accumulation of ice and snow was not due to any defect in the walk itself or in the building.

There is nothing here to take the case out of the general rule that a landlord is not liable to his tenant (and the plaintiff has no greater rights than the tenant whose guest she was) for injuries caused by ice and snow in the manner here disclosed, unless it is shown, as it was not shown here, that he has taken upon himself the duty of keeping the way clear of ice and snow. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344; Watkins v. Goodall, 138 Mass. 533, 536; Nash v. Webber, 204 Mass. 419, 90 N.E. 872; Hawkes v. Broadwalk Shoe Co., 207 Mass. 117, 122, 92 N.E. 1017.

The defendant's exceptions must be sustained; and following the plaintiff's stipulation, judgment must be entered for the defendant.

So ordered.