Newton v. City of Worcester
| Decision Date | 05 September 1899 |
| Citation | 54 N.E. 521,174 Mass. 181 |
| Parties | NEWTON v. CITY OF WORCESTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.C. Milton and C.W. Saunders, for plaintiff.
Arthur P. Rugg, for defendant.
This is an action under Pub.St. c. 52, § 18, to recover for personal injuries received by the plaintiff by reason of falling upon a sidewalk since St.1896, c. 540, went into effect. At the trial there was evidence tending to show that at the place of the accident there were a number of depressions in the surface of the sidewalk; that they were caused by some of the bricks being depressed and some elevated; that the depressions varied in depth from one-half inch to two inches and at the place of the accident covered an area two feet long and twelve to fourteen inches wide, and that this condition had existed for some time; that there were no projections or sharp corners, and that the surface of the depressions was smooth; that the adjoining premises sloped downward to the street, and water from a gutter spout on the adjoining building flowed upon a concrete walk, and thence over and across the defendant's sidewalk; and that at the time of the accident there was ice in the depressions, on which the plaintiff slipped, and was injured. A photograph of the sidewalk was used at the trial and at the argument before us. At the close of the evidence the defendant presented the following prayers for instructions: "(1) That the plaintiff cannot recover unless the jury find that independently of any ice or snow, the way was not reasonably safe and convenient for travelers;" "(2) that there is no evidence that, apart from snow or ice, there was a condition amounting to a defect on said way;" and "(3) if the plaintiff's injuries were occasioned wholly by reason of the accumulation of ice or snow, and it would not have occurred if there had been no ice upon the sidewalk, then the plaintiff cannot recover." As to the first and third requests the judge instructed the jury as follows: He refused to give the second instruction requested, but left the matter to the jury thus: It will be seen that the judge gave, in substance, the first instruction requested, but declined to give the second and third. The question is whether there was error in the manner in which he dealt with these last two requests. The discussion of this question involves an inquiry as to the meaning of St.1896, c. 540. We had occasion to examine this statute when this case was before us on exceptions raised at a former trial. Newton v. City of Worcester, 169 Mass. 516, 48 N.E. 274. It was there held that the court erred in refusing to instruct the jury that the plaintiff could "not recover unless the jury find that, independently of any ice or snow, the way was not reasonably safe and convenient for travelers." The report does not set out the instructions which were given, but on inspection of the papers it appears that the jury were instructed that, "If the sidewalk is so constructed with reference to the permanent condition of things about it, and to the operation of ordinary causes, that it is calculated to produce the formation and continuance of ice upon it, that sidewalk, under those circumstances, may be found not reasonably safe and convenient for travel." And the instructions to the jury authorized them to find that a way might be defective simply because it was of such a shape as to lead to the formation and continuance of ice and snow upon it. The opening remarks of Mr. Justice Allen in giving the opinion of the court apply to this instruction, and the only question raised was whether, in cases like this, it must appear that the way, when bare, is defective; and it was decided that it must so appear.
The consideration of the exceptions now before us involves a further inquiry as to the meaning of the statute. Prior to the statute, ice and snow, which, by reason of its roughness and slipperiness, combined, was dangerous to public travel might be regarded as an actionable defect, but smooth ice, however, no matter how dangerous to public travel, was not a defect unless the way was so improperly constructed as to induce a special or constant deposit of ice in the locality, or was built at such an angle, and so exposed to the formation of ice, as to make passing over it in winter especially and unusually dangerous; but in these cases it might constitute an actionable defect, even although the way was so constructed as not to be defective when bare. Stanton v. City of Springfield, 12 Allen, 566; Morse v. City of Boston, 109 Mass. 446; Billings v. City of Worcester, 102 Mass. 329; Gilbert v. City of Roxbury, 100 Mass. 185; Pinkham v. Inhabitants of Topsfield, 104 Mass. 78; Adams v. Chicopee, 147 Mass. 440, 18 N.E. 231; Hughes v. City of Lawrence, 160 Mass. 474, 36 N.E. 485. In this state of the law the statute was passed. It is entitled "An act relative to injuries received on highways resulting from snow or ice," and is as follows: "No city or town shall be liable for any injury or damage to person or property hereafter received or suffered in or upon any part of a highway, town way, causeway or bridge, by reason or in consequence of snow or ice thereon, if the place at which the injury or damage was received or...
To continue reading
Request your trial