Pease v. Shapiro .

• Decision Date: 23 June 1949
• Citation: 67 A.2d 17
• Parties: PEASE v. SHAPIRO (two cases).
• Court: Maine Supreme Court

67 A.2d 17

PEASE

v.SHAPIRO (two cases).

Supreme Judicial Court of Maine.

June 23, 1949.

Exceptions from Superior Court, Androscoggin County.

Action by Geraldine Pease against David Shapiro for defendant's alleged negligence in permitting ice and snow to fall from defendant's building and injure plaintiff then upon a sidewalk, and action by Edward Pease against the same defendant for medical expenses incurred as the result of such alleged injuries and for loss of his wife's services and companionship. On defendant's motions for new trials and on exceptions to an order of the presiding justice directing verdicts for plaintiffs.

Exceptions sustained.

John G. Marshall, Auburn, John A. Platz, Lewiston, for plaintiffs.

Harris M. Isaacson, Lewiston, James R. Desmond and William B. Mahoney, both of Portland, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, FELLOWS and MERRILL, JJ.

FELLOWS, Justice.

The first of these two cases is brought by Geraldine Pease against David Shapiro, for alleged negligence on the part of the defendant in ‘creating a condition’ or by suffering ‘a condition to exist’ whereby snow and ice fell from defendant's building, and injured the plaintiff Geraldine Pease, then upon the sidewalk. The second case is brought by the husband of Geraldine Pease for medical expenses incurred by him resulting from the alleged injuries, and also for loss of his wife's services and companionship. No claim is made, and no evidence appears to show that the defendant had nay personal knowledge of the accident or of snow conditions before. The plea was the general issue in both cases. The actions were tried together before a jury in the Androscoggin Superior Court. The amount of the verdict for Geraldine Pease was found by the jury to be $2,000. and for Edward Pease $500.

The cases are before the Law Court on exceptions by defendant to the order of the presiding justice for the jury to return a verdict for the plaintiff in each case; on exceptions by defendant to refusal of presiding justice to direct a verdict for defendant; on exceptions by defendant because, on defendant's motion for new trial to the presiding justice, the justice did not consider the merits of the motion, but ruled ‘in order that the cases might go promptly to the Law Court.’ The defendant also filed general motions for new trials.

The record shows that on February 16, 1947 the defendant was admittedly the owner of a three story building at No. 331 Main Street in Auburn. The evidence as to existing conditions and alleged negligence came from three witnesses only, George Barron, a civil engineer made a plan and measurements, and the testimony of Geraldine Pease, and her mother Laura C. Comeau.

It appears that on February 16, 1947 the plaintiff Geraldine Pease and her mother were walking at noontime on the sidewalk in front of defendant's building. The plaintiff lived next door. The plaintiff testified that ‘I was talking with my mother and all of a sudden I felt something hit me, and at the same time I saw a red light, a ball of fire, and I collapsed there,’ and further, the plaintiff said ‘There was an awful lot of ice on the ground * * * on the sidewalk * * * I didn't know what had struck me * * * there were some big pieces of ice on the sidewalk some two feet long and eighteen inches thick * * * and some small ones.’ The mother, Laura C. Comeau, who was with the plaintiff and who testified through an interpreter, said ‘I saw the first piece fall. Then I saw the second piece fall * * * from the roof of the building, * * * near the piazza.’ ‘The first one I didn't see, but the second ice it fall from the roof of the building and I stepped away. The piece fall and broke and pieces fall on her, right against her.’ Mr. Barron said that the eaves of the building were five feet ten inches from the line of the inside edge of the sidewalk. There was a gutter but no guard rail or snow fence. The roof pitched toward the sidewalk. There was no evidence of any defect in the roof. There was no lack of repair. There was no evidence of any previous gathering of snow or ice, and no evidence of snow or ice falling before. There was no evidence as to how long snow or ice had been on the roof, and except for the snow and ice on the sidewalk there was no evidence as to how much had accumulated or where. There was no evidence of any city ordinance regarding roofs or protection from snow. The defendant introduced no testimony.

The plaintiff's action is for negligence and the defendant can be held liable only on the ground that he was negligent, and that there was no negligence on the part of the plaintiff that contributed to the injury. The person in control of a building is bound, as between himself and the public, to keep buildings and other structures abutting upon streets and sidewalks safe for travellers lawfully passing along the same. Lee v. McLaughlin, 86 Me. 410, 30 A. 65, 26 L.R.A. 197. The owner, who has general supervision or control of a building, is liable when damage to the lawful pedestrian or traveller from snow or ice results wholly from the shape and condition of the roof and the proximity of the building to the street or sidewalk. Meyers v. Pepperel Manufacturing Co., 122 Me. 265, 119 A. 625.

As to the direct evidence of negligence, in this case under consideration, the plaintiff testified that something hit her while she was on the sidewalk in front of defendant's building. She did not know what. Her mother who was with the plaintiff said that she saw the second piece of ice fall from the roof and that her daughter was struck. The presiding justice in directing that the jury must find for the plaintiffs in both cases, left to the jury, as triers of facts, the question of the amount of damages only. The testimony of the mother, in effect, was by the Court taken as true, and any inferences that might be drawn from facts and circumstances as testified to by other witnesses were, by the presiding justice, resolved in favor of the plaintiffs. The defendant did not admit liability and expressly denied it. No testimony was offered in defense.

It is the well settled law of procedure that at a jury trial the presiding justice is authorized to direct a verdict for either party when a contrary verdict could not...