Nason v. City of Boston , 96 Mass. 508 ( 1867 )

Wells, J.

This case does not raise the question whether the railroad track, and the ridge of snow which was thrown up by ithe cars, were, of themselves, defects in the street. Those ciricumstances are relied on merely as showing a special cause, other than the elements, for the condition of the sidewalk.

The defect alleged, which occasioned the accident, was the slippery condition of the walk. This condition was produced by snow loosened and thrown up in the street by the cars, “and then being carried upon the sidewalk and trodden down by the ordinary travel of persons crossing the streets, and standing and waiting for the cars.”

The defendants’ counsel asked the court to apply the rule of law established in the case of Stanton v. Springfield, 12 Allen, 566, and in Hutchins v. Boston, Ib. 571, note. This the court declined to do; but apparently held that role to be limited to cases where the slippery condition of the way is occasioned by the mere operation of natural causes, such as the fall of rain or snow; and ruled that such condition, when produced in the manner described in this case, would be a defect for which the city would be liable, if, in the judgment of the jury, it rendered the street unsafe and dangerous.

This distinction cannot be maintained. The liability of the city must rest upon some ground of fault or neglect on the part of its officers who are charged with the care of the streets. Such fault or neglect is no more involved in the carrying of snow upon the sidewalk by the feet of travellers than in its fall there from the clouds. Neither can a liability on account of the condition of the sidewalk be established through any responsibility of the defendants for the construction or use of the street, whereby the snow was made more liable to be thus earned upon the walk. There must be fault or neglect which relates to the place of the alleged defect. The sidewalk was made dangerous, not by the accretion but by the freezing of the snow, after being trodden down to a smooth surface. This condition, so inevitable an incident of our climate, does not of itself render the city liable as for a defect in the street, without some other element or evidence of fault or neglect. Exceptions sustained.