Berrenberg v. City of Boston

C. Allen, J. The bill of exceptions does not undertake to give all the evidence in the case, nor to state the grounds upon which the evidence now in question was admitted, nor to show with what instructions it was submitted to the jury; and we have only to consider whether it was competent in any aspect. For the purpose of corroborating direct evidence that large ridges of ice were found upon the sidewalk at a particular place and upon a particular day, if that fact was in controversy, other evidence would be admissible to show that the situation of the sidewalk with reference to the adjacent land was such that ice in ridges, from frozen water and melted snow descending upon it, was habitually upon the sidewalk at that place; and other days might be mentioned, before or after the day in question, when such ice had been there. Stone v. Subbardston, 100 Mass. 49, 57. Fitzgerald v. Woburn, 109 Mass. 204. A usual and [233] habitual state of things, dependent upon natural causes, and constantly producing the same results, has a legitimate tendency to show that the result was in existence at a particular time. Such evidence, however, would not be competent for the direct purpose of showing the shapq or dimensions of the ridges of ice on the day when the accident occurred, unless it was so near in point of time, or accompanied with such other evidence of temperature and climate in the mean time, as to furnish a presumption that its condition remained unchanged; and there is no reason to suppose that the evidence in this case was submitted to the jury for that purpose. The measurement of the elevation and slope of the adjacent ground was so near in point of time, that it was within the discretion of the court to admit it, there being no evidence of any intervening change. In the opinion of a majority of the court, the entry must be Exceptions overruled.