Caron v. Gibbs

Wait, J. There was evidence from which, taken most strongly against the defendant, the jury could find that a servant of the defendant, while engaged in his business delivering ice, on a wet, hot day in July, stopped his truck [433] with the tail board projecting over the space traversed by persons on foot in crossing Stockbridge Street in Springfield at its junction with Main Street, drew out a cake of ice, and in so doing dropped small pieces of it on the walk where passers might step upon them and slip in consequence; that, within a few minutes thereafter and before the servant returned to the truck, the female plaintiff, walking across the street, as she was about to step upon the curbstone, slipped upon a piece of ice, fell and was injured; that she did not see the ice until she observed it after her fall. There was no error in refusing to direct a verdict for the defendant. We cannot say, as matter of law, that there was negligence on the part of the plaintiff in walking as she did, Agnew v. Franks, 255 Mass. 539, 541, or that the servant was not careless in leaving pieces of ice where they might cause harm. The cases cited by the defendant are not controlling. In them there was no such justification as here for an inference that the servant rather than some other person was in fault. It was not pure speculation that it was he, rather than some one else, who placed the pieces of ice on the sidewalk. The judge was not in error in refusing to instruct as requested. Exceptions overruled.