Smith v. Preston

• Decision Date: 22 April 1908
• Citation: 71 A. 653,104 Me. 156
• Parties: SMITH v. PRESTON.
• Court: Maine Supreme Court

71 A. 653

104 Me. 156

SMITH

v. PRESTON.

Supreme Judicial Court of Maine.

April 22, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Cumberland County.

Action on the case for personal injuries by Catherine Smith against John C. Preston. Verdict for plaintiff, and defendant excepts, and moves for a new trial. Motion and exceptions overruled, and judgment on the verdict.

Action on the case to recover damages for personal injuries sustained by the plaintiff February 1, 1907, and caused by the alleged negligence of the defendant. The defendant was the owner of a certain two-story building on Washington avenue, Portland, and the plaintiff claimed that a certain gutter on the outside of the defendant's building and over which he had control was defective and leaky, so that the water accumulated by it was wrongfully discharged upon the public sidewalk, where it froze and rendered the sidewalk dangerous, and that the accumulation of ice caused thereby was an obstruction of the sidewalk, and constituted a nuisance both at common law and by statute. The plaintiff, a woman over 80 years of age, while lawfully walking on this part of the sidewalk, slipped and fell on the ice, and fractured her left hip, and also received other bodily injuries. The plaintiff's writ contained two counts—one at common law and the other under the statute. See Rev. St. c. 22, §§ 5, 13. Plea, the general issue. Tried at the October term, 1907, Supreme Judicial Court, Cumberland county. Verdict for plaintiff for $507.47. The defendant then filed a general motion for a new trial, and also excepted to the refusal of the presiding justice to give to the jury a certain requested instruction.

The case appears in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

Connellan & Connellan and Wm. R. Robinson, for plaintiff.

D. A. Mealier, for defendant.

KING, J. On the 1st day of February, 1907, between 9 and 12 o'clock in the forenoon, the plaintiff, a lady past 80 years of age, while walking on the sidewalk on the southerly side of Washington avenue in Portland, fell and received bodily injuries. She claims that the cause of her fall was a spot of ice which had formed there by the freezing of water wrongfully conducted by the defendant from his building upon the sidewalk, and which rendered the walk dangerous. In this action for damages she has" obtained a verdict, and the case is here on defendant's motion to have the verdict set aside as being against the law and evidence and upon exceptions.

The defendant's building is two stories high, gable roof, standing in the corner formed by Cumberland avenue on the west and Washington avenue on the north, with its end facing the latter avenue, and is so located that its northeast corner adjoins the sidewalk, but its northwest corner is back eight or ten feet therefrom. The building has wooden gutters, the one on the easterly side, at its street end, joining the projecting finish of the gable roof, so that this joint of intersection slightly overhangs the sidewalk.

Attached to the east side of this building, on Washington avenue, is a one-story building of the defendant, adjoining the line of the sidewalk, with its roof sloping back from the street. Both buildings were occupied by tenants, and all repairs were to be made by the defendant.

The plaintiff claimed, and introduced evidence tending to show, that the gutter on the easterly side of the two-story building was defective and leaky, and that at its northerly end over the sidewalk, there was an opening in the joint through which the water it accumulated was wrongfully discharged upon the walk where it froze, forming a dangerous accumulation of ice, that was an obstruction of the walk, and caused her injuries without fault on her part.

The defendant denied this claim, and testified that the gutter was not defective, that water was not discharged from it upon the walk, and that on the morning of the day of the accident he passed over this sidewalk, and saw there no accumulation of ice as the plaintiff alleged.

There can be little or no doubt, however, from all the evidence that there was at the time of the plaintiff's accident, and had been for some time prior thereto, a defect in the gutter through which water was unnaturally discharged upon the sidewalk, causing ice to form thereon abreast the junction of the two buildings.

No one saw the plaintiff fall, and the defendant claims that she failed to prove due care on her part. She was found, with her hip fractured, at the place where the ice was. She says she slipped and fell on the ice. There is nothing in the case suggesting that she had any infirmity on account of which she should have refrained from using the public streets. On the other hand, it appears affirmatively that she was accustomed to travel upon the streets, and was active and spry for one of her age.

Her statement as to her conduct at the time was: "I was walking along the sidewalk as I usually do, paying attention to my business." The jury had a right to understand from that statement that she was "paying attention" to where and how she was walking. That is evidence of due care. Whether or not she did, in fact, exercise due care, was an issue for the jury. That issue they must have decided for the plaintiff, and their decision should control.

It will serve no useful purpose to incorporate here any extended review of the evidence, which is somewhat conflicting. From an examination of the whole case, we are of opinion that a jury would be warranted in finding that the sidewalk was obstructed by an accumulation of ice resulting from water artificially collected and discharged upon it by a defective gutter of the defendant's building, over which he had control as to its physical condition and repair, and that while rightfully using the sidewalk as a traveler, and in the exercise of due care, the plaintiff was injured by that obstruction.

If upon these facts and conditions the action is maintainable, then the defendant's motion for a new trial must be denied.

But, notwithstanding those facts, the defendant contends that he did not create the obstruction by any wrongful act, or cause its existence by the neglect of any duty owing by him to the plaintiff; and, furthermore, that he was a mere landlord, and not the occupant of the building, and that those in occupation as tenants are liable, if any one is liable, for the alleged obstruction.

We have already observed that the jury were warranted in finding as a fact that the building, at least that part of it including the defective gutter, was under the general care of the defendant, and that he had such control of the premises as was necessary to keep them in proper and safe condition. His own testimony established that fact. In answer to the question: "What arrangement, if any, had you made for the repairs of the two-story building?" he said: "Well, I made all repairs. When I was informed anything was needed, or if I discovered anything was out of repair, I had it fixed." He not only retained the right to make repairs, but the liability to keep the building in proper and safe condition continued to rest upon him notwithstanding the letting.

Whenever an owner is bound to repair his building, and has control of it sufficient for that purpose, he, and not the tenants, is liable to a third person for damages arising from a neglect to repair. Such liability rests upon the elementary principle that the party whose neglect of duty causes the damages is responsible therefor....