Mahoney v. Perreault
| Decision Date | 03 April 1931 |
| Citation | 275 Mass. 251,175 N.E. 467 |
| Parties | MAHONEY v. PERREAULT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Frederic B. Greenhalge, Judge.
Action by Margaret A. Mahoney against I. J. Perreault. The trial judge directed a verdict for defendant, and on agreement of the parties reported the case.
Verdict for defendant to stand.F. G. Moulton and G. A. Murphy, both of Boston, for plaintiff.
J. F. Cavanagh and W. G. Wehrle, both of Boston, for defendant.
This is an action to recover for personal injuries received by the plaintiff on or about February 25, [275 Mass. 252]1926, resulting from falling upon an icy sidewalk in front of premises owned by the defendant, in Holyoke, in the county of Hampden. At the close of the plaintiff's evidence the defendant rested; the trial judge directed a verdict for the defendant and upon agreement of the parties reported the case to this court. If the judge was wrong in declining to submit the case to the jury, it was agreed that judgment should be entered for the plaintiff in the sum of $2,000; otherwise the verdict is to stand.
There was evidence tending to show that on the Saturday before the accident there had been a heavy fall of snow, which ended the next day, and that on the following Monday, Tuesday and Wednesday the snow had been shovelled off the concrete sidewalk in front of the defendant's premises by him and placed upon the grass plot or tree belt; that the snow outside the curb had been removed by the city with a scraper which threw it upon the grass plots on both sides of the street to a height of from two to three feet; that during the daytime it would melt and run over the sidwalk, and at night would freeze; that the plaintiff slipped and fell upon ice so formed, and received injuries for which she seeks to recover in this action.
It is the contention of the plaintiff that her injuries were the result of negligence of the defendant in shovelling snow from the sidewalk upon the grass plot, where at times it melted and ran upon the sidewalk forming ice. It is also contended by the plaintiff that the defendant was negligent in failing to spread upon the sidewalk sand or ashes. It is not contended by the defendant that the plaintiff was not in the exercise of due care, or that the notice required by G. L. c. 84, § 21, St. 1922, c. 241, was not duly given by the plaintiff. The only issue of law presented then is whether upon the evidence most favorable to the plaintiff her injury could be found to have resulted from negligence of the defendant.
The undisputed evidence shows that after snow fell upon the concrete sidewalk it was removed by the defendant by throwing it upon the grass plot. So far as appears there was no other place where he could have deposited it unless he threw it into the street thereby impeding travel, or caused it to be carried away. There was evidence tending to show that the inner edge of the sidewalk was slightly lower than at the curb. It also appears that, while some of the snow had been shovelled upon the grass plot by the defendant, part of its had been pushed there by scrapers of the city and by passing automobiles. If we assume that it could be found that the water which ran over the sidwalk came from snow shovelled upon the grass plot by the defendant that had melted, it cannot reasonably be found that he thereby created a nuisance, or artificially brought about a condition which increased or changed the flow of water at the place where the plaintiff fell. The defendant violated no duty he owed the plaintiff by clearing snow from the sidewalk in front of his premises. He acted within his rights in shovelling it upon the grass plot. There is no evidence to...
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