Fitzgerald v. Inhabitants of Woburn , 109 Mass. 204 ( 1872 )

Gbay, J.

The only question argued upon this report is whethei the evidence is sufficient to warrant a jury in finding a defect in the highway.

This court, while holding that mere slipperiness of a sidewalk, of no unusual slope or construction, by reason of a coating of ice of substantially uniform thickness, from whatever cause arising, is not a defect or want of repair, for which a city or town can be made liable in damages, has also held that a sidewalk, constructed of such form and slope as naturally and usually to induce such a collection or formation of ice as to be peculiarly dangerous to passengers, may constitute such a defect. Stanton v. Springfield, 12 Allen, 566, 569. Billings v. Worcester, 102 Mass. 329. Pinkham v. Topsfield, 104 Mass. 78. Street v. Holyoke, 105 Mass. 82.

The evidence introduced at the trial of the present case tended to show that at the place at which the plaintiff slipped and fell there was a gutter leading across the sidewalk from the hotel to the street, gradually narrowing and deepening towards the edge-stone; that the sidewalk was also made with a gradual slope towards this gutter for the purpose of carrying off the surface water; that water dropped from the overhanging roof of the piazza, and flowed from another gutter by the side of the hotel, upon this sidewalk and gutter, in such a manner that in winter there was usually more or less ice there; and that no other means had been provided, and no other way existed, by which any of such water could be conducted from the hotel to the street, except by flowing over the spot upon which the plaintiff fell. We are all of opinion that whether, under these circumstances, the form and construction of the gutter and sidewalk was such as to make the highway, with the ice formed thereon, defective and dangerous at this spot, was a question to be submitted to the jury.

Case to stand for trial.