Smethurst v. Proprietors Indiana Cong. Church

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtDEVENS
Citation148 Mass. 261,19 N.E. 387
Decision Date03 January 1889
PartiesSMETHURST v. PROPRIETORS IND. CONG. CHURCH.

148 Mass. 261
19 N.E. 387

SMETHURST
v.
PROPRIETORS IND.
CONG. CHURCH.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1889.


Exceptions from superior court, Essex county; CHARLES P. THOMPSON, Judge.

Action for tort. While plaintiff was engaged in unloading his wagon, standing in the street, a quantity of snow fell from defendants' building, and struck plaintiff's horse, causing it to start, and plaintiff was thrown to the ground, receiving the injuries complained of. Judgment for plaintiff, and defendants except.


[148 Mass. 264]S.A. Fuller, for plaintiff.

W.H. Gove, for defendants.


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

[19 N.E. 388]

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 [148 Mass. 265]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,...

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43 practice notes
  • Simon v. Solomon
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 18, 1982
    ...with Boylston Hous. Corp. v. O'Toole, 321 Mass. 538, 563, 74 N.E.2d 288 (1947), and Smethurst v. Independent Congregational Church, 148 Mass. 261, 265, 19 N.E. 387 (1889). Generally, "actual damages" are losses flowing directly from a wrongful act. See H. L. Oleck, supra § 12. &qu......
  • Evans v. Hill, 33286
    • United States
    • United States State Supreme Court of Mississippi
    • June 13, 1938
    ...Colson, 123 Kan. 702, 256 P. 971, 53 A. L. R. 457; Steppe v. Alter, 48 La. App. 363, 55 A. S. R. 281; Smethurst v. Congregational Church, 148 Mass. 261, 12 A. S. R. 550; Shipley v. Fifty Associates, 106 Mass. 194, 8 A. R. 318; Murray v. Mc-Shane, 52 Md. 217, 36 Am. Rep. 367; Waterhouse v. S......
  • Basabo v. Salvation Army, Inc.
    • United States
    • United States State Supreme Court of Rhode Island
    • December 10, 1912
    ...al. (1878) 125 Mass. 487; Davis v. Central, etc., Soc'y (1880) 129 Mass. 367, 37 Am. Rep. 368; Smethurst v. Barton Square Church (1889) 148 Mass. 261, 19 N. E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550; Stewart v. Harvard College (1866) 12 Allen, 58. And while the court says in Farrigan v. P......
  • State v. Pritchett
    • United States
    • Delaware Superior Court
    • September 13, 1961
    ...been used for shopping, calling, or delivering merchandise.' 'It was said by this court in Smethurst v. Barton Square Ind. Cong. Church, 148 Mass. 261, 266, 19 N.E. 387, 389 (2 L.R.A. 695, 12 Am.St.Rep. 550), "In order to be a traveler it is not necessary that one should be constantly ......
  • Request a trial to view additional results
43 cases
  • Simon v. Solomon
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 18, 1982
    ...with Boylston Hous. Corp. v. O'Toole, 321 Mass. 538, 563, 74 N.E.2d 288 (1947), and Smethurst v. Independent Congregational Church, 148 Mass. 261, 265, 19 N.E. 387 (1889). Generally, "actual damages" are losses flowing directly from a wrongful act. See H. L. Oleck, supra § 12. &qu......
  • Evans v. Hill, 33286
    • United States
    • United States State Supreme Court of Mississippi
    • June 13, 1938
    ...Colson, 123 Kan. 702, 256 P. 971, 53 A. L. R. 457; Steppe v. Alter, 48 La. App. 363, 55 A. S. R. 281; Smethurst v. Congregational Church, 148 Mass. 261, 12 A. S. R. 550; Shipley v. Fifty Associates, 106 Mass. 194, 8 A. R. 318; Murray v. Mc-Shane, 52 Md. 217, 36 Am. Rep. 367; Waterhouse v. S......
  • Basabo v. Salvation Army, Inc.
    • United States
    • United States State Supreme Court of Rhode Island
    • December 10, 1912
    ...al. (1878) 125 Mass. 487; Davis v. Central, etc., Soc'y (1880) 129 Mass. 367, 37 Am. Rep. 368; Smethurst v. Barton Square Church (1889) 148 Mass. 261, 19 N. E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550; Stewart v. Harvard College (1866) 12 Allen, 58. And while the court says in Farrigan v. P......
  • State v. Pritchett
    • United States
    • Delaware Superior Court
    • September 13, 1961
    ...been used for shopping, calling, or delivering merchandise.' 'It was said by this court in Smethurst v. Barton Square Ind. Cong. Church, 148 Mass. 261, 266, 19 N.E. 387, 389 (2 L.R.A. 695, 12 Am.St.Rep. 550), "In order to be a traveler it is not necessary that one should be constantly ......
  • Request a trial to view additional results

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