Field v. Gowdy
| Decision Date | 20 October 1908 |
| Parties | FIELD v. GOWDY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Oct 20, 1908.
R. J Morrissey, J. B. Carroll, and W. H. McClintock, for plaintiff.
Henry W. Ely and Joseph B. Ely, for defendant.
This is an action of tort by the plaintiff, a traveler upon a public sidewalk, against the defendant, an abutting landowner, for collecting water from his roof and conducting it through a spout onto his own walk, whence it flowed by natural slant to the public walk and froze, so that the plaintiff while walking with due care after dark on a December day slipped and was injured.
1. The refusal of the trial court to rule that the plaintiff was not entitled to recover was correct. There was evidence that the plaintiff was in the exercise of due care. A landowner has a right to change the surface of his lot, or improve it by the construction of buildings or by other means, in any lawful manner, and if the natural course of surface water is thereby altered no liability is imposed on him. But he has no right to collect water into a definite channel by a spout or otherwise and pour it upon a public way. If he does this and through the operation of natural causes the water freezes, he is the efficient cause in the creation of a nuisance and is liable for whatever damage ensues as a probable consequence. Cavanagh v. Block, 192 Mass. 63, 77 N.E. 1027, 6 L. R. A. (N. S.) 310, 116 Am. St. Rep. 220; Hynes v. Brewer, 194 Mass. 435, 80 N.E. 503, 9 L. R. A. (N. S.) 598; Leahan v. Cochran, 178 Mass. 566, 60 N.E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 506. There was evidence tending to show that from two spouts on the defendant's house, one about 11 feet from the street line, and the other nearer by the width of a piazza, water was collected from the roof and turned upon his concrete walk, and by the natural grade of the walk flowed to the sidewalk, where it froze in a ridge across the width of the public walk about three inches in thickness in the middle. This was sufficient to warrant a finding that the defendant collected the surface water in an artificial course and poured it upon the public way in such a manner as to create a nuisance. Moore v. Gadsen, 87 N.Y. 84, 41 Am. Rep. 352, is distinguishable on the ground that no water was there collected in a definite channel; that falling upon the lot as was permitted to flow according to gravity without being gathered.
2. There was evidence from which it was argued that there was a depression or gully in the sidewalk, into which the water from the defendant's spout flowed and froze. Upon this aspect the defendant asked for rulings in substance that the plaintiff could not recover, if the water would have run off but for the defect in the sidewalk, and that the defendant in maintaining his premises was not obliged to take into account the effect of this condition. This request was refused, and the jury instructed that if the defendant materially contributed to the cause of the defect, which occasioned the plaintiff's injury, he would not be excused because some other cause also contributed, and that if the defendant's conductor was a nuisance and water from it froze on the sidewalk, so as to be dangerous, the defendant would be liable, even if the sidewalk was otherwise dangerous. No error is here disclosed. The town and the defendant were not joint tort feasors in producing the dangerous condition of the sidewalk, which resulted in the plaintiff's injury yet if each contributed an efficient causal factor, either may be liable. Mooney v. Edison Electric Illuminating Co., 185 Mass. 547, 70 N.E. 933; Lowell v. Glidden, 159 Mass. 317, 34 N.E. 459; Boston v. Coon, 175 Mass. 283, 56 N.E. 287. A landowner in turning water upon a public way is bound to take into account its actual condition, and determine at his peril whether his act in conjunction with the way, as it exists from time to time, will create a nuisance. A defect in a highway, when bare, may be so conjoined with snow or ice that both together may operate as a proximate cause, to which an injury may be attributed. Newton v. Worcester, 174 Mass. 181, 187, 54 N.E. 521. An abutting landowner can no more rely upon perfection of conduct in the public officers having charge or highways than upon like conduct in an individual to shield himself from the consequences of his own tortious act. If both are wrongdoers and both contribute to the injury as a cause, each may be liable, though there may be no concert of action. Corey v. Hovener, 182 Mass. 250, 65 N.E. 69 The verdict of the jury has established the fact of the defendant's wrong doing. Even though this wrongful act alone may not have been a sufficient cause for the plaintiff's injury, but working concurrently with another wrongful act of a third person, both being efficient causes, the harm is occasioned to the plaintiff, either may be liable. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 82 N.E. 705. In the requests of the defendant, the concurrent operation of two causal wrongful agencies in the creation of the dangerous situation was omitted, and they were properly refused, while the instructions given conformed to the law. The defendant has argued in his brief that there was no evidence as to the length of time the defect in the sidewalk had existed, but that point does not appear to have been raised at the trial, and the portion of the charge dealing with it is not reported. It is now too late to raise the question. The defense...
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