Pinkham v. Topsfield , 104 Mass. 78 ( 1870 )

Gray, J.

This court has held that the mere fact that a highway, of no unusual slope or construction, is slippery by reason of a smooth coating of ice, from whatever cause arising, does not constitute a defect or want of repair, for which a city or town is liable, under the highway act. Stanton v. Springfield, 12 Allen, 566. Hutchins v. Boston, Ib. 571 note. Nason v. Boston, 14 Allen, 508. Stone v. Hubbardston, 100 Mass. 49. Gilbert v. Roxbury, Ib. 185. Billings v. Worcester, 102 Mass 329.

But in delivering the judgment of the court in the leading case of Stanton v. Springfield, Mr. Justice Hoar said, “ There is no question that a way may be defective or out of repair, within the meaning of the statute, by reason of ice or snow upon it.” And after mentioning, by way of illustration, cases less like the present, in which snow and ice might be obstructions to travel, he proceeded, “ A way may be defective by being so improperly constructed as to induce a special or constant deposit of ice in a particular locality. It may be built at such an angle, and so exposed to the formation of ice, as to make passing over it in winter especially and usually dangerous. In all of these cases, it will be for the jury, under proper instructions, to decide, as a question of fact, whether the way is properly made and kept in proper repair.” 12 Allen, 569, 570.

In this case, we are all of opinion that the rule thus declared was stated to the jury in terms df which, as applied to the facts in proof, the defendants have no cause to complain. The evidence introduced tended to st ow that the place alleged to be defective was upon a steep and springy hillside, where the road sloped not only in the direction of its course, but across it from one side to the other; and the instructions given to the jury called their attention particularly to the evidence, and did not authorize them to return .a verdict for the plaintiff, unless they .bund that there was some special reason for the formation of ice in that particular locality, owing to the constructipn or condition of the road, that the ice there formed rendered the highway unsafe and dangerous, and that but for such defect the injury to the plaintiff would not have happened.

It does not appear from the statement, in the bill of exceptions, of the evidence and the instructions given and requested, that any question was made at the trial of the time during which the defect had existed. Exceptions overruled.