Hohman v. Hemmen

• Decision Date: 28 October 1932
• Citation: 280 Mass. 526,182 N.E. 850
• Parties: HOHMAN v. HEMMEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 526

182 N.E. 850

HOHMAN

v.HEMMEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 28, 1932.

Exceptions from Superior Court, Suffolk County; James C. Donnelly, Judge.

Action by Carrie E. Hohman against Herman T. Hemmen and others. Verdict for plaintiff, and defendants bring exceptions.

Exceptions overruled.W. H. Taylor and A. L. Brown, both of Boston, for plaintiff.

J. J. Curran, of Boston, for defendants.

FIELD, J.

This action of tort to recover compensation for personal injuries received by the plaintiff when she fell on the sidewalk in front of the premises of the defendants in the city of Boston by reason of an alleged unnatural accumulation of ice thereon was tried by a judge and a jury with an action against the city to recover compensation for the same injuries. At the close of the plaintiff's case a verdict was ordered for the city. The trial proceeded against these defendants and the jury returned a verdict for the plaintiff. The case comes before us on exceptions to a part of the judge's charge.

The evidence introduced by the plaintiff tended to show that while walking upon the sidewalk in front of the defendants' building she slipped and fell upon a ridge of ice and was injured. It could have been found that the ice was caused by water dripping upon the sidewalk from the building. Two police officers called by the defendants gave testimony which tended to contradict the plaintiff's evidence that there was such a ridge of ice on the sidewalk. One of them testified that he was the officer on the route and that he made a report of the accident to the station house. The other, an officer attached to the same station, testified that the accident did not occur on his route, but that he looked at the sidewalk because he was a police officer and it was his duty to do so, and that it was a part of the duty of police officers to see that the sidewalk was clean. He testified that he was ‘subsequently notified by the captain in the station house that a claim had been made on the city of Boston and he was called to headquarters and to the city law department where he answered questions.’

The part of the judge's charge to which objection was made was as follows: ‘Now in connection with the case of the city, there is something to which I should I think call your attention. There was, of course, as you know, a case against the city. It may or may not have some bearing as you decide on the weight of the testimony of the police officers and the witnesses for the defendants here, to tell you something of the liability which would be the city's, were the city's case prosecuted in this court as was the case of the defendants. There is a distinction there, which may or may not, as you decide, affect the weight of the testimony to be given to the witnesses offered by the defendants, who included two policemen. The city is liable in an accident of this kind involving snow and ice only where there is such a defect in the way, in this case the sidewalk, which, taken in connection with the snow and ice, would subject the passerby to injury either by reason wholly of the defect or by reason of the defect taken in connection with the snow and ice which was associated with the defect, and in this case, I think it has appeared in some of the testimony that the policemen examined the sidewalk. Now that may have some bearing on the examination made by the policemen, whether they were looking for defects in the sidewalk, whether they were lookingin the city sense, or whether they were looking for defects in the sidewalk, which might bind these defendants or both, and, of course, you have their testimony as to how they examined it. And what was their answer? I think both the policemen and the other witnesses said they saw nothing of the condition which was testified to by the plaintiff's witnesses, but I thought I should tell you as to the city's liability as bearing on the examination and the report made to you by the people called here by the city.’ In another part of the charge the judge stated to the jury that they had certain testimony before them ‘and also the testimony of the witnesses summoned by the defendants as to conditions as they saw them on the day of the accident,’ and that ‘the weight to be given to any and...