Hynes v. Brewer

Decision Date28 February 1907
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

William P. Meehan and Charles H. Donahue, for plaintiff.

Peabody & Arnold, for defendant.



Although many other questions were raised by the defendant's exceptions, his counsel have insisted upon only three contentions: That on all the evidence the plaintiff was not entitled to recover; that the justice at the trial should have given the seventh instruction asked for; and that the court erred in that part of the charge relating to the contribution of water from the defendant's premises to the formation of ice on the crosswalk where the plaintiff fell. We will consider these points in their order.

1. The jury had a right to find that the plaintiff was in the exercise of due care. There was evidence that she was walking at a reasonably slow pace, in a place where she had a right to be. She was looking ahead as she walked. She had no reason to expect one side of the street to be more dangerous than the other. She wore rubbers. She testified that she was taking greater care by reason of her condition at that time. Shipley v. Proctor, 177 Mass. 498, 59 N.E. 119. The fact that she could see ice at this place as well as on other sidewalks in that vicinity cannot be conclusive against her. Smith v. Lowell, 6 Allen, 39; Bennett v Everett, 191 Mass. 364, 77 N.E. 886.

The jury could find on the evidence that the effect of the defendant's maintaining the retaining wall along Green street in connection with the grading of her estate in that vicinity had been materially to alter the natural drainage of the land and to collect the surface water and that coming from rain and melted snow into an artificial pool, gathered and retained by the slope of her ground as graded and the water-tight structure of the wall, which, when sufficiently accumulated, would overflow in a considerable stream across the walk where the plaintiff fell; that this had happened shortly before the accident, and had resulted in a large accumulation of ice sloping from the junction of the fence and wall downward and outward to the street, this ice being about six inches thick at the thickest portion near the fence and wall, and being formed of ridges about a quarter of an inch thick, in successive layers. This would bring the case within the general rule that a landowner cannot, without being liable therefor, erect such buildings or structures upon his own land as will create a public nuisance in a highway. He has not the right to collect surface water into an artificial channel and thus to discharge it upon the highway. Cavanagh v. Block, 192 Mass. 63, 77 N.E 1027; Shipley v. Proctor, 177 Mass. 498, 59 N.E. 119; Rathke v. Gardner 134 Mass. 14, Smith v. Faxon, 156 Mass. 589, 31 N.E. 687; Fitzpatrick v. Welch, 174 Mass. 486, 55 N.E. 178, 48 L. R. A. 278.

Nor is it material here that this retaining wall was not built or the grading of the adjacent land done by the defendant's intestate. The liability is for maintaining the structures which bring about a public nuisance, and is the same whether she herself had them built, or received the property while they were standing upon it. Leahan v. Cochran, 178 Mass. 566, 60 N.E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 506. The fact that they had been maintained without change for 50 years gives no immunity. The right to maintain such a nuisance cannot be gained by prescription. Hammond, J., in Leahan v. Cochran, ubi supra, referring to Holyoke v. Hadley Co., 174 Mass. 424, 426, 54 N.E. 889, and New Salem v. Eagle Mill Co., 138 Mass. 8.


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