MaLoney v. Hayes

• Decision Date: 18 May 1910
• Citation: 91 N.E. 911,206 Mass. 1
• Parties: MALONEY v. HAYES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 1

91 N.E. 911

MALONEY v. HAYES.

Supreme Judicial Court of Massachusetts, Norfolk.

May 18, 1910

COUNSEL

Louis S. Thierry, for plaintiff.

John H Appleton and Charles R. Darling, for defendant.

OPINION

BRALEY J.

The plaintiff, while lawfully using the street as a traveler, was injured by falling on an accumulation of ice, which had been formed from water collected and discharged upon the sidewalk through a spout attached to a conductor leading from the roof of the defendant's house. A landowner, or occupier of land, cannot lawfully collect surface water into a definite channel, and discharge it upon a highway, Making it unsafe for the use of travelers. The act creates a public nuisance and a traveler who suffers injury therefrom can sue the wrongdoer. Hynes v. Brewer, 194 Mass. 435, 80 N.E 503, 9 L. R. A. (N. S.) 598. But as the premises at the time of the accident were in the possession and control of a tenant at will, the defendant contends that he is not responsible. If during the tenancy the defendant voluntarily painted and shingled the house, no retention of control of the premises for the purpose of making repairs or ascertaining their condition is shown, and the tenant had the right of possession and enjoyment of the estate. Porter v. Hubbard, 134 Mass. 233; Kearines v. Cullen, 183 Mass. 298, 67 N.E. 243; Sheehan v. Fall River, 187 Mass. 356, 73 N.E. 544. Where the lessor, whether the letting is by parol, or by demise, reserves no right to enter upon the premises to make repairs, or to ascertain if they are properly used, he is not liable for injuries to strangers caused by the tenant's negligence in permiting them to become defective, or arising from the manner in which they are used. Frischberg v. Hunter, 173 Mass. 22, 52 N.E. 1086, and cases cited; Clapp v. Donaldson, 195 Mass. 39, 80 N.E. 486; Neas v. Lowell, 193 Mass. 441, 79 N.E. 810; Coman v. Alles, 198 Mass. 99, 83 N.E. 1097, 14 L. R. A. (N. S.) 950. The unrestricted use and control having been given to the tenant, the duty devolves upon him so to use the property as not to cause an injury to those who may be lawfully upon the premises, or to travelers on the highway upon which the estate abuts. Clifford v. Atlantic Mills, 146 Mass. 47, 15 N.E. 84, 4 Am. St. Rep. 279. But if the unsafe condition of the sidewalk could have been attributed to the tenant's negligence, the defendant as owner also would be liable, if at the time of letting the conductor and spout were adjusted to form a permanent arrangement for the continued discharge of drainage. Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49, 15 N.E. 84, 4 Am. St. Rep. 279; Lufkin v. Zane, 157 Mass. 117, 122, 31 N.E. 757, 17 L. R. A. 251, 34 Am. St. Rep. 262. The connection of the spout with the conductor was not in dispute, and it was for the jury to decide upon conflicting evidence as to the location of the outlet, or place of discharge. If they determined that when the tenant entered into occupation the spout...