Maloney v. Hayes

Braley, J. The plaintiff, while lawfully using the street as a traveller, was injured by falling on an accumulation of ice, which had been formed from water collected and discharged upon the sidewalk through a spout attached to a conductor leading from the roof of the defendant’s house. A landowner or occupier of land cannot lawfully collect surface water into a definite channel and discharge it upon a highway, making it unsafe for the use of travellers. The act creates a public nuisance, and a traveller who suffers injury therefrom can sue the wrongdoer. Hynes v. Brewer, 194 Mass. 435. But as the premises at the time of the accident were in the possession and control of a tenant at will, the defendant contends that he is not responsible. If during the tenancy the [3] defendant voluntarily painted and shingled the house, no retention of control of the premises for the- purpose of making repairs or ascertaining their condition is shown, and the tenant had the right of possession and enjoyment of the estate. Porter v. Hubbard, 134 Mass. 233. Kearines v. Cullen, 183 Mass. 298. Sheehan v. Fall River, 187 Mass. 356. Where the lessor, whether the letting is by paroi or by demise, reserves no right to enter upon the premises to make repairs, or to ascertain if they are properly used, he is not liable for injuries to strangers caused by the tenant’s negligence either in permitting them to become defective, or arising from the manner in which they are used. Frischberg v. Hurter, 173 Mass. 22, and cases cited. Clapp v. Donaldson, 195 Mass. 39. Neas v. Lowell, 193 Mass. 441. Coman v. Alles, 198 Mass. 99. The unrestricted use and control having been given to the tenant, the duty devolves upon him so to use the property as not to cause an injury to those who may be lawfully upon the premises, or to travellers on the highway upon which the estate abuts. Clifford v. Atlantic Cotton Mills, 146 Mass. 47. But if the unsafe condition of the sidewalk could have been attributed to the tenant’s negligence, the defendant as owner also would be liable if at the time of letting the conductor and spout were adjusted to form a permanent arrangement for the continued discharge of drainage. Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49. Lufkin v. Zane, 157 Mass. 117, 122. The connection of the spout with the conductor was not in dispute, and it was for the jury to decide upon conflicting evidence as to the location of the outlet or place of discharge. If they determined that when the tenant entered into occupation the spout projected beyond the fence through which a hole had been cut and fitted for the purpose, they would be justified in finding further that the combination was used and had been designed by the defendant for the disposal of melting snow and water coming from the roof. The defendant let the property for hire with knowledge of these conditions, and if the formation of ice might have been prevented by the tenant’s detaching the spout or in some way confining the overflow within the enclosure, the premises were so constructed as to be permanently dangerous to travellers. Having created a continuing nuisance to which the [4] plaintiff’s injury was attributable, the defendant could not relieve himself from responsibility by letting the premises, when he must have contemplated they would remain and be used in the same manner as when rented. McDonough v. Gilman, 3 Allen, 264, 267. Prentiss v. Wood, 132 Mass. 486, 488. Jackman v. Arlington Mills, 137 Mass. 277. Dalay v. Savage, 145 Mass. 38, 41. Lufkin v. Zane, 157 Mass. 117, 122. The verdict for the defendant was improperly ordered, and there must be a new trial. Exceptions sustained.