Shipley v. Proctor

Barker, J. The evidence tended to show that the conductors attached to the defendants’ building were so arranged that the water from them formed ridges of ice upon the sidewalk. Whether the result was a public nuisance in the highway adjoining the defendants’ premises was a question of fact. Kirby v. Boylston Market Association, 14 Gray, 249, 251, 252. This question was left to the jury under instructions to which -no exception was taken. The request founded upon St. 1896, c. 540, was properly refused. That statute is part of the law as to the liability of municipalities, and applies only to that liability. The only contention made in the argument before this court was that a verdict should have been ordered for the defendants because the evidence would not justify a finding that the plaintiff was in the exercise of due care. But the evidence both as to the condition of the sidewalk where the plaintiff fell, and of the sidewalks generally was conflicting, and it might be found that in walking in front of the building there was no occasion for the plaintiff to exercise extraordinary care. She testified that as she approached the walk in front of the premises she was walking slowly and cautiously until she got about in front of the unoccupied store in the defendants’ building, and that she saw a sheet of ice upon the sidewalk; that she stepped upon the ice and commenced to walk over it, and that about the time that she began to walk over the ice she looked into the window of the unoccupied store, continuing to walk, and then turned her gaze from the window and looked straight ahead up the street not looking down to see the ice or to pay any more attention to it. In Wilson v. Charlestown, 8 Allen, 137, chiefly relied on for the defendants, the whole sidewalk was covered with ice so as to be very slippery and dangerous, and the plaintiff had just passed over it, aiid had remarked upon its dangerous condition, and might have taken a safer way. These circumstances distinguish it from the present case. Upon the whole evidence reasonable care could be found, and the question of the plaintiff’s care was left to the jury under instructions not excepted to. Exceptions overruled.