Dahlin v. Walsh

Sheldon, J. The plaintiff does not complain of the ruling of the judge at the trial that she was not entitled to recover against the defendant Walsh, but contends that there was evidence on which the jury might have found in her favor against the defendant Yudelman, who was the tenant and occupant of a [165] store abutting on the sidewalk on which the plaintiff fell. Her contention is that the jury might have found that he had artificially accumulated snow on the sidewalk, which first melted and then froze from natural causes, and so created the condition of things which resulted in her fall. There was some evidence that the defendant had shovelled the snow from the sidewalk, but not for its full width; that be had left a space two or three feet wide on the side of the sidewalk towards the driveway uncleared. It also appeared that the snow was considerably higher in the driveway than on the sidewalk, sloping from the street over the gutter towards and upon the inner side of the sidewalk, and that the snow had melted and flowed towards the outer edge of the sidewalk, and then bad frozen, forming a layer of slippery ice sloping from the neighborhood of the curbstone towards Yudelman’s store. It may be assumed that one might be liable for a special and peculiar injury caused by his own creation of a nuisance upon the highway, as by the artificial accumulation of ice and snow upon the sidewalk in front of his premises; and that this liability would extend to the case of one who discharged water upon the sidewalk at a time when the natural result would be to freeze the water and expose travellers upon the sidewalk to the danger of injury from falling. Davis v. Rich, 180 Mass. 235. Leahan v. Cochran, 178 Mass. 566. Shipley v. Proctor, 177 Mass. 498. If Yudelman did pile up snow upon any part of this sidewalk in such an accumulated mass as essentially to - interfere with travel thereon, or by means of the operation of natural causes which he ought to have foreseen to create danger by its melting and freezing, then the plaintiff, if herself in the exercise of due care, could maintain an action against him for a personal injury caused by this conduct on his part. Kirby v. Boylston Market Assoc. 14 Gray, 249, 251. And see McMahon v. Lynn & Boston Railroad, 191 Mass. 295; McDonald v. Toledo Consolidated Street Railway, 74 Fed. Rep. 104. The real question accordingly is whether there was any evidence that Yudelman did pile up the snow into an artificial accumulation upon any part of this sidewalk; and we cannot find that there was. The plaintiff’s evidence went no further than to the effect that the sidewalk, being nine or ten feet wide, had [166] been shovelled off here only to a width of six or seven feet, and that there was a formation of smooth and slippery ice, thicker toward the curb, and sloping toward the store, and thatithe snow was higher near the street and still higher in the driveway of the street. This formation of ice, with the snow which was upon the ground, is amply accounted for by the weather conditions, and apparently came from the snow in the street and over the gutter and perhaps also from that part of the sidewalk which had not been shovelled. The presence of this ice would not warrant the inference that it came from Yudelman’s having piled up the snow which he cleared from one part of the sidewalk upon its inner edge; for under the conditions here in evidence, ice upon the sidewalk would have been as likely to form in the manner and to the extent testified to if all the surface of the sidewalk had been cleared of snow. Accordingly we need not consider whether the fact that Yudelman cleared off only a part of the sidewalk, as the jury might have found was the,case, would impose upon him any duty to passers-by to clear off the whole of its surface. Certainly he owed no duty to the plaintiff to keep the sidewalk clear of ice and snow coming thereon from natural causes, or to guard against the risk of accident by scattering ashes or using any other like precautions, whether or not any public duty was imposed upon him by the ordinances of the city. Kirby v. Boylston Market Assoc. 14 Gray, 249, 252. Moore v. Gadsden, 87 N. Y. 84. Rohling v. Eich, 48 N. Y. Supp. 892. The view of the case which we take makes it unnecessary to determine whether the jury would have had the right to find that the plaintiff was herself in the exercise of due care, a question certainly not free from difficulty. Exceptions overruled.