Smethurst v. Proprietors Independent Congregational Church

• Decision Date: 03 January 1889
• Parties: SMETHURST v. PROPRIETORS IND. CONG. CHURCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 261

19 N.E. 387

SMETHURST v. PROPRIETORS IND. CONG. CHURCH.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1889

COUNSEL

S.A. Fuller, for plaintiff.

W.H Gove, for defendants.

OPINION

DEVENS J.

It is the contention of the defendant that, as the declaration alleges negligence on the part of the defendant, the plaintiff can maintain it only by showing a want of ordinary care in the construction or management of its building. Where parties in the management of their own estate so use it that injury in the ordinary course of things may fairly be expected to result to others in the enjoyment of their own estates, or in the exercise of their own lawful rights, as such use is wrongful, if injury does thus result it may properly be said to have occurred by their negligence. The instructions as given on this point were in the language used by this court in Shipley v. Fifty Associates, 106 Mass. 194. They deny to defendant the right to erect and maintain a building, even if of no unusual construction, so near the street that ice or snow will so fall from it in the ordinary course of things as to endanger travelers who are passing in the highway, or using the same rightfully for the purposes of travel. Shipley v. Fifty Associates, like the case at bar, was an action brought for negligence on the part of the defendants, in the use of their property. It is there said that the defendant "had no right so to construct his building that it would inevitably, at certain seasons of the year, and with more or less frequency, subject his neighbor to that kind of inconvenience; and no other proof of negligence on his part is needed." The defendant urges that as in that case the building of the defendant did not encroach upon the highway, while in the case at bar it is shown to have done so, (the eaves projecting about two feet beyond the wall of the building and into the street,) the injury to plaintiff did not result from its carelessness or negligence, but from the encroachment over the highway, and thus, even if defendant would be liable for a nuisance or in trespass, it is not in the action.

The wall of defendant's building was on the line of the highway, but the portion of the roof projecting over the highway was a part of the roof, as the building was constructed and maintained, and, if injury resulted therefrom, it was incidental to the construction and use by defendant of its property. Nor was such use the less properly described as careless and negligent because it was also distinctly wrongful.

The second instruction requested by the defendant was a general statement taken from McDonald v. Snelling, 14 Allen 290, the accuracy of which we have no occasion to question. If that given by the presiding judge instead of it was correct, adapted to the case, and all that the case required, the defendant can have no ground of objection because the words asked by him were not used. The instruction as given was: "The striking of the horse by the snow, if it caused him to start, would be a direct proximate cause of the injury, although the ice and snow may not have hit the plaintiff." This instruction assumes that the fall of ice or snow upon the horse was found to have been due to the negligence of the defendant, as upon all parts of the case not especially made the subject of exception full and appropriate instructions were given. It is well settled in this commonwealth that one who violates a duty owed to others, or commits a tortious or wrongfully negligent act, is liable, not only for those injuries which are the direct and...