Mallen v. James A. Houston Co.

Rugg, C. J. There was evidence from which it might have been found that the plaintiff, while on the sidewalk of Washington Street in Boston, was struck by snow thrown from the defendant’s building by one of its employees while removing an accumulation occasioned by a snow storm. The defendant urges that the plaintiff is precluded from recovery because she was not in the exercise of due care. This defense is based on the facts that the accident happened on a stormy morning, when there had been a snow fall of about eight inches, and that the plaintiff after seeing a mass of snow and ice fall on the sidewalk in front of her paused a moment, stepped back and then continued on her course without doing anything for her protection, and was injured. There was evidence that no warning by rope, guard or otherwise was upon the sidewalk. She was a traveller upon a public way, and was not bound to anticipate danger in going forward, even under the circumstances here disclosed. It cannot be ruled as matter of law that the ordinarily prudent person must expect another fall of a mass of snow upon the sidewalk because there has been one such fall. The circumstance that this came from the negligence of the defendant’s servants was significant as bearing upon a reasonable probability that it would be repeated. The due care of the plaintiff was to be determined as a fact in the light of all the attendant conditions. Linnehan v. Sampson, 126 Mass. 506. Dipper v. Milford, 167 Mass. 555. Frost v. McCarthy, 200 Mass. 445, and cases there collected. The defendant further contends that as the plaintiff gave no notice to the defendant of her injury within ten days after it was received, she is precluded from recovery by St. 1908, c. 305. This statute requires the notice set forth in R. L. c. 51, §§ 20-22, when an action is founded upon a defective condition of premises or an adjacent way caused by or consisting in part of snow or ice. [301] O’Donoughue v. Moors, 208 Mass. 473. Baird v. Baptist Society, 208 Mass. 29. Paszkowski v. Stony Brook Paper Co. 210 Mass. 86. There was no evidence tending to show that the plaintiff was injured by any defective condition either of the premises of the defendant or of the adjacent way. Her only contention was that she was struck by snow and ice tortiously thrown by the agent of the defendant in the course of his employment. This was not a condition but conduct. It is as if the defendant itself carelessly threw a snowball or a piece of ice by which she was injured. She grounded her case upon an intentional, intelligent and voluntary act of a human being, and not upon a passive condition or something set in motion by the forces of nature. The statute does not apply to such a situation as that here disclosed. Exceptions overruled.