Sanborn v. McKeagney

By the Court. The material facts as stated in the report are that the plaintiff, a traveller upon a public way in Boston, received personal injury on the sidewalk in front of premises owned by the defendant by slipping upon ice formed from water flowing from a conductor, which then and for years before drained the roof of a house adjoining the house of the defendant and which was on or near the dividing line between the two houses. There was no evidence tending to show that the defendant controlled the conductor or that any water from his premises drained into it. No liability of the defendant can be established by inference or otherwise on this record. There is nothing to indicate responsibility resting on him for the conductor or the water flowing from it. Decisions predicating liability upon such control or ownership like Field v. Gowdy, 199 Mass. 568, Marston v. Phipps, 209 Mass. 552, Drake v. Taylor, 203 Mass. 528, Leahan v. Cochran, 178 Mass. 566, and Hynes v. Brewer, 194 Mass. 435, are inapplicable. The mere circumstance that ice was on the sidewalk in front of his premises did not show negligence on his part. There is no evidence of any ordinance requiring him to keep the sidewalk clear of snow and ice. But if there had been such evidence that would not have rendered him liable. Kirby v. Boylston Market Association, 14 Gray, 249, 252. Dahlin v. Walsh, 192 Mass. 163, 166. See also Menut v. Boston & Maine Railroad, 207 Mass. 12; Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 493, 494. Judgment should be entered for the defendant. St. 1913, c. 716, § 3. Loanes v. Gast, 216 Mass. 197. So ordered.