Shepard v. Creamer

• Decision Date: 27 February 1894
• Citation: 160 Mass. 496,36 N.E. 475
• Parties: SHEPARD v. CREAMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 496

36 N.E. 475

SHEPARD v. CREAMER.

Supreme Judicial Court of Massachusetts, Essex.

February 27, 1894

The instruction complained of was as follows "The defendant has no right to erect or maintain a building, if it be of no unusual construction, so near the street that snow or ice will fall from it, in the ordinary course of things, so as to endanger travelers in passing; and if the building in question was so constructed and maintained, the defendant would be liable without further proof of negligence."

COUNSEL

H.P Moulton, for plaintiff.

F.L Evans and Huntington & Fitz, for defendant.

OPINION

MORTON J.

The exception to the instruction to the jury cannot be sustained. If the ground of liability is negligence, as the defendant contends it is, then it was negligence to maintain a building so near the street and so constructed that, in the ordinary course of things, snow or ice was liable to fall from the roof upon travelers on the adjoining highway. Smethurst v. Barton Square Church, 148 Mass. 261, 19 N.E. 387; Shipley v. Fifty Associates, 106 Mass. 194. If the defendant was bound, at his peril, to prevent snow and ice from falling from the roof upon those lawfully on the adjoining highway, then the instruction was too favorable to him. If the maintenance of the building as constructed was, as matter of law, negligence, the fact that the roof was constructed in the usual manner, and like that which had been used for many years on a large portion of the buildings on streets in Salem, would not help the defendant. Hill v. Winsor, 118 Mass. 259; Maguire v. Railroad Co., 115 Mass. 239; Hinckley v. Barnstable, 109 Mass. 126.

The description of the defendant as trustee was...