Street v. Inhabitants of Holyoke , 105 Mass. 82 ( 1870 )

Colt, J.

In accordance with the defendants’ request, the jury were told that the fact that the sidewalk was slippery from ice or snow upon it, if there was no such accumulation as to constitute an obstruction to travel, would not be a defect for which the town was liable. Other instructions were given which were not excepted to, and are not set forth, which must have stated in a general form the true rule and measure of this statute liability, and the jury must have found that the female plaintiff, while crossing with due care, on her way to the shop, that part of the highway appropriated to the sidewalk, was injured by a defect therein vhich was something more than merely slippery snow or ice. There is no good reason given for setting aside the verdict.

The duty of cities and towns to keep their streets and highways safe and convenient extends certainly to that part wrought for travel, both of the street and sidewalk, and protects alike the travellers who pass along it, and those who have occasion to pass across it in order to reach adjoining premises ; not that all parts of all highways shall be kept in like repair, and alike smooth and free from obstruction, but that all parts of all highways shall be kept in such a condition as shall be deemed reasonably safe and convenient, having reference to the character of the way and the amount of travel over it. Snow v. Adams, 1 Cush. 443. Raymond v. Lowell, 6 Cush. 524, 530. Kingsbury v. Dedham, 13 Allen, 186. Hutchins v. Boston, 97 Mass. 272. Billings v. Worcester, 102 Mass. 329.

The court rightly refused the other instructions asked for. It would have been clearly erroneous to have defined, as matter of law, within what limits of extent and elevation an icy ridge accumulated upon a sidewalk could exist and not be a defect. Luther v. Worcester, 97 Mass. 268, 271. And the fact that a light snow was falling at the time, which concealed the defect and made it more dangerous, had legitimate bearing only upon the question of the plaintiff’s care. The icy ridge was the defect complained of, not the falling snow, and although the injury would not have happened but for snow, yet the town is not thereby relieved of its responsibility. Day v. Milford, 3 Allen, 98.

The husband’s previous knowledge of the defect would not defeat the wife’s action. It would not prevent the husband himself from recovering if the jury were satisfied he exercised due ca" i. Whittaker v. West Boylston, 97 Mass. 273. Mahoney v. Metropolitan Railroad Co. 104 Mass. 73 Exceptions overruled.