Birnbaum v. Crowninshield

C. Allen, J. 1. The objection to the ruling of the court, that the action could not be maintained under the declaration as it stood originally, was done away with by the allowance of the amendment. 2. Upon the whole evidence, there was nothing to show that the defendant either built the sidewalk, or held out any inducement or invitation to the plaintiff to pass over it, which would render the defendant responsible; and the case might properly [181] have been withdrawn from the jury, and a verdict directed to be returned for the defendant, on the ground that there was no evidence to establish a liability on the part of the defendant for the condition of the sidewalk. Merely allowing an old, defective, and decaying plank sidewalk along one side of a private way to remain contiguous to the fear side of premises which have been under lease for several years, with no means of access from the premises to the sidewalk, will not render the owner of the premises responsible in damages for a personal injury sustained by one passing over the sidewalk, in consequence of its defective condition. There was nothing else in the case except the removal of the fence and walk, where the same encroached upon the defendant’s land, about four years before the time when the plaintiff received his injury; and this obviously was done merely with reference to putting the boundary in its proper place. The exceptions taken are therefore immaterial, as no other result than a verdict for the defendant could properly have been reached. Exceptions overruled.