McAuley v. City of Boston

Gray, C. J. It does not appear by the report that there w anything defective or unusual in the construction or repair of the sidewalk. The case would seem to have turned upon the question whether the jury found the form and dimensions of the ice at the spot where the plaintiff fell to have been as testified to on the one side or on the other. The evidence for the defendant tended to show that the only ice or snow at that place was in smooth patches produced by the water from a conductor on an adjacent building; and the jury were instructed, in accordance with the decision in Billings v. Worcester, 102 Mass. 329, that if such was the condition of the sidewalk the city was not liable. The evidence for the plaintiff tended to show that the snow and ice at the place in question, by the effect of melting and freezing, and the trampling of passengers, without being shovelled off for several days, was quite uneven, with slippery ridges or hillocks and intervening hollows, which made the sidewalk more dangerous to walk over than it would have been if the ice had been smooth and of substantially uniform thickness. Such evidence, according to repeated decisions, was sufficient to warrant the jury in finding that the highway was defective. A ridge or hillock of ice, which makes the surface of the sidewalk substantially uneven, may be equally a defect in the highway, whether it causes a traveller to stumble against it, or, by reason of its peculiar form or slope, to lose his footing upon it. Luther v. Worcester, 97 Mass. 268. Hutchins v. Boston, Ib. 272, note. Street v. Holyoke, 105 Mass. 82. Morse v. Boston, 109 Mass. 446. The presiding judge therefore rightly declined to withdraw the case from the jury. The instructions given must be applied to the evidence in the case, and, fairly construed, required the jury to find that the form of the ice differed substantially from a smooth and uniform surface, and that by reason of that difference the sidewalk was peculiarly dangerous and defective. No special instructions were requested, and the argument of the learned counsel for the city [506] before this court was directed to the sufficiency of the evidence, and not to the wording of the instructions. Judgment on the verdict for the plaintiff. * Footnotes [*] At November term, 1874, for Essex, was argued and determined Mary Williams vs. City or Lawrence. Tort to recover for a hurt received by the plaintiff by falling on a sidewalk in Lawrence. At the trial in the Superior Court, before Lord, J., the plaintiff testified, that January 6, 1873, while walking from church, on the sidewalk on Chestnut Street in Lawrence, to her house, she slipped, fell and fractured her thigh bone; that the sidewalk was in a very rough and “ hubbly ” condition; that it was so rough and uneven that she had to pick her way along it as best she could among the bunches and rough places, and had to walk very slow; that she slipped and fell, on account of the rough and uneven condition of the sidewalk; that when she fell, her hip struck on the rough and uneven places, and she thereby received the injury complained of; that she wore rubbers over her shoes, and woollen socks over the rubbers. On cross-examination, she testified, that there were foot holes all along the sidewalk, that they made it very rough and “ hubbly; ” that there had been a snow-storm the week before which ended in a rain that made the sidewalk soft; that parties passing over the sidewalk when in that condition made foot holes all along it, and made it very rough and uneven; that the sidewalk froze while in that condition; that she walked over the sidewalk the Sunday previous, and that she knew its condition at the time she walked upon it and fell. The plaintiff introduced another witness, who testified that the same day the plaintiff fell he examined the sidewalk, that it was about four feet wide as made by the snow-plough, a triangular instrument which was used to level the snow and to make the sidewalk convenient for travelling, and which left the sidewalk smooth; that the sidewalk was dishing, and some five inches lower in the centre than on the outside, and in a very slippery condition, but not made slippery by the action of the snow-plough; that the sidewalk was very rough and “ hubbly ”; that the roughness and unevenness was general, consisting of rough foot holes and rounded “ hubbies ” of various heights, some three or four inches high; that the sidewalk had been in that condition two or three days previous to the happening of the injury, and that the sidewalk was in so bad a condition that one could not walk on it without being in danger of falling. The plaintiff also introduced one Ash, as a witness, who testified that he saw the plaintiff when she fell; that she was walking very slowly, with her arm) extended as though she was in the fear of falling, that the sidewalk was in a tough and uneven condition, and was the same the day before. [507] There was no evidence that there was any fault in the construction of the sidewalk, and there was no evidence of any defect except that occasioned by the frozen and trodden condition of the snow upon the sidewalk. The city admitted the location of the street, and its liability in case there was a defective sidewalk on it; and upon these facts asked the court to rule that there was nothing for the jury; that the facts, if true, did not as a matter of law constitute a defect in the street. The plaintiff contended that the facts were for the jury to pass upon, and that it was for them, in view of all the facts and circumstances of the case, to determine whether the sidewalk was defective. The presiding judge, without ruling upon the question, with the consent of the parties, took the case from the jury, and reported the facts for the determination of this court, as to whether the case should have been submitted to the jury upon the foregoing facts to find whether the sidewalk was defective. J. C. Sanborn, for the plaintiff. D. Saunders, for the defendant. By the Court. This case cannot be distinguished from those of Morse v. Boston, 109 Mass. 446, and McAuley v. Boston, supra. Case to stand for trial.