Hughes v. City of Lawrence

Morton, J. It has been held that a condition of mere slipperiness upon a well constructed sidewalk due to natural causes alone, and not to an accumulation of ice and snow, did not constitute a defect in the way; (Stanton v. Springfield, 12 Allen, 566 ; Billings v. Worcester, 102 Mass. 329 ;) but that a way would be defective if so constructed, or if its condition was such that there was in consequence thereof some special cause for the collection or formation of ice in a particular locality and the way was thereby rendered unsafe and dangerous, though the ice was smooth and slippery, and not uneven or accumulated in ridges. Stanton v. Springfield, 12 Allen, 566. Pinkham v. Topsfield, 104 Mass. 78. Fitzgerald v. Woburn, 109 Mass. 204, 205. Spellman v. Chicopee, 131 Mass. 443. Adams v. Chicopee, 147 Mass. 440. This was held when the liability of cities and towns for defective ways was more stringent than now. We think the same reasons which then led to the adoption of the rule hold good now. The present case is in some respects perhaps a close one, but we cannot say that it should not have been submitted to the jury, or that the instructions were erroneous. 481 The gutter extended across the sidewalk, and was about fourteen inches wide and from an inch to an inch and a half deep, and formed a part of the sidewalk. It was competent for the jury to find that this constituted a defect in the way, and that its construction was such as to cause a special deposit of ice at that particular place. Marvin v. New Bedford, 158 Mass. 464, and cases cited. Fitzgerald v. Woburn, 109 Mass. 204. Spellman v. Chicopee, 131 Mass. 443. The case stands differently from what it would if the water as it discharged from the conductor spread out over the sidewalk in a thin sheet and then froze. That would be like Billings v. Worcester, 102 Mass. 329, where it appeared that the sidewalk was properly constructed unless the slope was too great, and it did not appear what that was. This case resembles more nearly Fitzgerald v. Woburn, ubi supra. But there was evidence which would have justified the jury in going even further. The exceptions expressly state that there was “ evidence on which the jury might have found that ice had accumulated to the height of a foot or more (it does not appear how much more) at the bottom of the iron conductor and extending out in the stone gutter about half way across the sidewalk,” losing in thickness as it receded from the conductor, and extending easterly about six feet by the side of the grating, thus forming a mass of ice about six feet square, and partly within and partly without the limits of the way. There was also evidence on which the jury would have been justified in finding that the sidewalk had been in this condition for a number of days. We cannot say that a mass of ice, such as upon the evidence the jury may have found existed, was not an obstruction to public travel, and did not render the way unsafe and defective. Fitzgerald v. Woburn, 109 Mass. 204. Olson v. Worcester, 142 Mass. 536. Blake v. Lowell, 143 Mass. 296. Adams v. Chicopee, 147 Mass. 440. The defendant contended, and there was evidence on which the jury could have so found, that the- ice was about an' eighth of an inch thick, and extended from the stone gutter a little over six feet easterly by the side of the grating to a point opposite a window in the adjacent building, and was three feet or more wide at the east end and a little narrower where it touched the gutter, and was perfectly smooth and even, and that the plaintiff slipped and fell on the thin ice farthest from the gutter. If this accurately 482 described the condition of the ice and the place where the plaintiff slipped and fell, then she was not entitled to recover. But the plaintiff offered evidence that she slipped and fell as she stepped on or into the stone gutter; it was for the jury to say where she slipped and fell. Their attention was plainly directed to this matter by the court. They were told that it was important for them to determine whether she slipped at the gutter as she stepped on it or into it, or near the window where the grating was, the idea conveyed being, we think, from the instructions, that if she slipped and fell on the smooth ice near the window she could not recover. The jury were also instructed, in substance, that if the water as it came out of the conductor accumulated in the stone gutter, and in consequence thereof caused a slippery condition at that particular place where it crossed the sidewalk, it was for them to say, taking into account all the circumstances of the case and the necessity of constructing buildings along the side of the way, whether the way was reasonably safe, and if it was not then it was out of repair and defective. We are of opinion that the attention of the jury was directed with sufficient explicitness to the essential features of the case, and that there was nothing in the rest of the instructions on this branch inconsistent with what was thus said. The defendant contends further that the notice was defective, because it did not describe the place where it was contended at the trial that the plaintiff fell. The notice described the place as two feet east of the gutter. The defendant conceded that there was no intention to mislead. We should hesitate to say that a variance of two feet in describing the place of the accident would render the notice void. The object of a notice is to direct attention with substantial accuracy, not with unerring precision, to the place where an accident has happened. In the present case, although the notice described the place where the plaintiff fell as two feet east of the gutter, it went on to describe the cause of the injury as “ an accumulation of ice due in part to a water conductor which was broken and discharged water upon the sidewalk, and in part to said stone drain which confined the water in such a way that it formed a defect in the sidewalk and caused an accumulation of ice thereon,” thus directing attention espe 483 cially to the stone drain or gutter. The jury has found that the defendant was not misled in fact by the notice, and we do not see how it could have been. The notice was not given till two weeks after the accident, but the examination, measurements, and photographs on which the plaintiff relied were made and taken the morning after it, and included the gutter. All the witnesses testified to the condition of the gutter. We see no error in the instructions given on the matter of notice, and think that those requested by the defendant were rightly refused. If there was no intention on the part of the plaintiff to mislead, and if the defendant was not actually misled, it was immaterial if through error the plaintiff may have intended to describe a different spot from the exact one where she fell. See Spellman v. Chicopee, 131 Mass. 443; Canterbury v. Boston, 141 Mass. 215; Fortin v. Easthampton, 142 Mass. 486; Gtardner v. Weymouth, 155 Mass. 595. Exceptions overruled.