Tiffany v. F. Vorenberg Co.

• Decision Date: 10 March 1921
• Citation: 238 Mass. 183,130 N.E. 193
• Parties: TIFFANY v. F. VORENBERG CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 183

130 N.E. 193

TIFFANY

v.F. VORENBERG CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 10, 1921.

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Action of tort for personal injuries by Carroll H. Tiffany against F. Vorenberg Company. Verdict for plaintiff, and defendant excepts. Exception sustained, and judgment ordered for defendant.

Fowler, Bauer & Kenney and Thomas R. Bateman, all of Boston, for plaintiff.

Walter I. Badger, Chester M. Pratt, and Louis C. Doyle, all of Boston, for defendant.

JENNEY, J.

This is an action of tort in which the plaintiff seeks to recover damages for personal injuries sustained by him between 15 minutes before 2 o'clock and 2 o'clock in the afternoon, February 11, 1918, by reason of a fall upon the sidewalk in front of a building on Winter street, a highway in Boston. The defendant had a lease of the entire building, but occupied only the first floor and basement, having subleased the upper floors.

On Sunday, February 10, 1918, a fire started in the basement of the building and extended to the first floor. The ‘all-out’ signal was sounded shortly before 4 o'clock in the morning of the day of the accident. There was no evidence that the defendant was in any way responsible for the occurrence or management of the fire. There was evidence that glass, broken by the fire department in fighting the fire, fell upon the sidewalk from windows in the building. No barriers had been placed to prevent the use of the sidewalk adjoining the defendant's leasehold. The plaintiff, while walking along that part of the sidewalk, slipped on the glass or ice, and fell. He was helped to arise by a man whom he identified as a shipper in the employ of the defendant. Later this same man swept the ice and glass from the sidewalk.

The plaintiff gave notice of his accident in a manner conformable to the requirements of St. 1908, c. 305, as amended by St. 1913, c. 324. See G. L. c. 84, § 21.

He elected to go to the jury only on the first count of his declaration, which alleged that it was the duty of the defendant immediately after the fire to clear away the broken glass, and to see that no harm came to persons using the sidewalk, either from the continued presence of the glass or through the artificial accumulation of water upon the leased premises and its discharge from said building in unusual quantities upon the sidewalk; that the defendant did not ‘clear away said broken glass so as to render the sidewalk * * * safe and suitable for travelers and passersby, and did not take proper steps to remove the artificial accumulation of water discharged from said building * * * at a time when the natural result was that the same would freeze and expose travelers to the danger of injury by falling and to form ice making said sidewalk uneven, slippery and unsafe for public travel, and to constitute a public nuisance in said highway.’ At the conclusion of the evidence, the defendant duly moved that a verdict be directed in its favor.

The defendant was not...