MacDonald v. Adamian

• Citation: 200 N.E. 888,294 Mass. 187
• Parties: MacDONALD v. ADAMIAN et al.
• Decision Date: 01 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 187

200 N.E. 888

MacDONALD

v.ADAMIAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1936.

Action of tort by Lauchlin MacDonald against Elma H. Adamian and another, administratrix and trustee. From an order of the Appellate Division, dismissing a report by a district judge, who found for plaintiff in the sum of $1,500, defendants appeal.

Affirmed.Appeal from Appellate Division, District Court of Eastern Middlesex, Northern District; Brooks, Judge.

E. J. Bushell, of Malden, for appellants.

A. W. Eldredge and C. O. Williams, both of Boston, for appellee.

RUGG, Chief Justice.

This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff, ‘while travelling on the sidewalk in front’ of land with buildings thereon owned by the defendant's intestate, located at No. 142 Fulton street at the corner of Valley street in Medford, by slipping upon ice ‘formed from water gathered’ upon his land and ‘negligently discharged * * * upon said sidewalk through an artificial channel’ upon the property of the defendant's intestate. The substance of the evidence in the record is this: The plaintiff testified that he walked up Valley street at about five o'clock on a December morning on his way to work, and when in front of the premises of the defendant's intestate fell at a point about nineteen feet from Valley street, three feet from the building, and eighteen inches from the steps of the store occupied by one Donovan. The garage is next door to the Donovan store and in the same building on land of the defendant's intestate. The plaintiff was on his way to get a morning paper; the store was not open for business on that morning or any other morning at that hour; it was still dark; he was never authorized by Donovan, the occupant of the store, to take any paper; the papers were delivered in a bundle tied by rope and left on the steps of the store; it had been the plaintiff's custom for six or seven years to pull a paper from this bundle and to deposit two cents for it in a letter slot in the door of the store, and the money fell into a box attached to the inside of the door. It was raining and sleeting; the ice at the entrance of the store where he fell was bulky and higher than the rest of the ice around that section; the ground was covered with ice; it was slippery all around; the gutter on the building had a hole in it; he knew before the accident that there were no conductor pipes coming from the gutter. One Jannini testified that he was lessee of a garage in the building of the defendant's intestate at the time of the accident to the plaintiff; that the water dripped down the side of the building from the roof to the ground ‘through holes in the gutter, in back of the gutter and between the ends where two sections of the gutter met’; that it had snowed the day previous to the accident of the plaintiff; that the snow was not plowed or shoveled; ‘that there was a sort of pool and depression with ice which was above the rest;’ that there was an accumulation of ice four or five inches high along the side of the building, diminishing in size as it extended out for two or three feet and sloped to the same level as the rest of the ice. It was admitted that the defendant's intestate was the owner of the premises containing the garage and store leased to Jannini and Donovan respectively, and received due notice of the time, place and cause of the injury.

At the close of the plaintiff's case the defendant rested and requested these rulings: ‘1. That there was no evidence that the premises were under the control of the defendant,’ or ‘that there was an unnatural accumulation of snow and ice caused by the defendant's negligence. 2. The defendant can only be held responsible where it appears that his negligence in the maintenance of the premises of which he had control caused the alleged artificial and unnatural accumulation of snow and ice. 3. The plaintiff under the circumstances was owed no duty by the defendant to prevent a possibility that he might be injured by any ice or snow, as the plaintiff was not an invitee but a trespasser on the premises of the defendant at the time of the alleged accident. 4. The fact that it was sleeting, snowing and raining at the time of the accident complained of and that the day was slippery cannot as a matter of law hold the defendant liable for the injuries to the plaintiff.’ The first and third of these requests were denied, the second was granted, and the fourth was denied because inapplicable to the facts found.

The trial judge found for the plaintiff and assessed damages in a substantial sum and reported the rulings and refusals to rule as requested.

The record is confused and unsatisfactory. It contains no statement that all the evidence bearing on the requests for rulings is reported. It comprises no findings of fact. It seems difficult, though perhaps not impossible, to infer that the injury to the plaintiff occurred on a public sidewalk,as seemingly is alleged in the declaration. The question of variance, however, is not raised by a request for rulings and cannot be considered. Walker v. Nickerson (Mass.) 197 N.E. 451;Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 384, 176 N.E. 114. The place where the accident to the plaintiff occurred is not stated intelligibly in the record. There is no evidence as to the distance from the edge of the public way to the steps of the Donovan store. Whether the plaintiff slipped on land of the defendant's intestate on the usual avenue of approach provided by him to the Donovan store is not shown by the evidence. It is stated that the trial judge took a view of the premises in the presence of counsel for both parties. It seems probable, therefore, that the place where the plaintiff slipped must have been precisely indicated at the trial. But the defendant did not, so far as appears by the record, develop by cross-examination of the plaintiff testimony on this point, and no ruling of law was requested touching it.

In general the burden is upon the party seeking reversal of a decision by a trial judge to see that enough is set out in the record to show that harmful error has been done him. Posell v. Herscovitz, 237 Mass. 513, 516, 130 N.E. 69. We are of opinion that on this...