Macdonald v. Adamian
| Decision Date | 01 April 1936 |
| Citation | 294 Mass. 187 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | LAUCHLIN MACDONALD v. ELMA H. ADAMIAN & another, administrators. |
October 8, 1935.
Present: RUGG, C.
Snow and Ice. Negligence, Of one owning or controlling real estate. Practice, Civil, Appellate Division: appeal. Landlord and Tenant, Defective gutter.
A question of law not raised at a trial in a district court cannot be raised in this court upon appeal from an order of the Appellate Division.
Upon a confused and unsatisfactory report by a judge of a district court who found for the plaintiff in an action for personal injury alleged to have been caused by the plaintiff's slipping on ice formed by the discharge of water from a defective gutter on the defendant's building, which he had let to another, it was held that it did not appear that the defendant had been harmed by error at the trial.
TORT. Writ in the First District Court of Eastern Middlesex dated April 7 1931, originally against Harry Adamian.
The action was heard in the District Court by Brooks, J., who found for the plaintiff in the sum of $1,500. After the death of the defendant, the administratrix of his estate was admitted to defend the action. A report was ordered dismissed by the Appellate Division for the Northern District. The defendant administratrix appealed.
E. J. Bushell, for the defendant administratrix.
A. W. Eldredge, (C.
O. Williams with him,) for the plaintiff.
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 defendants' intestate, located at 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 defendants' 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 defendants' 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 defendants' 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 to 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 shovelled; "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 sloping to the same level as the rest of the ice. It was admitted that the defendants' 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: or 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, 291 Mass. 522 . Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 384. 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 defendants' intestate on the usual avenue of approach provided by him to the Donovan store is not shown by the evidence. It is...
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