Shepard v. Creamer , 160 Mass. 496 ( 1894 )

Morton, J.

The exception to the instruction to the jury cannot be sustained. If the ground of liability is negligence, as the defendant contends it is, then it was negligence to maintain a building so near the street and so constructed that, in the ordinary course of things, snow or ice was liable to fall from the roof upon travellers on the adjoining highway. Shipley v. Fifty Associates, 106 Mass. 194. Smethurst v. Barton Square Church, 148 Mass. 261. If the defendant was bound at his peril to prevent snow and ice from falling from the roof upon those lawfully on the adjoining highway, then the instruction was too favorable to him. If the maintenance of the building as constructed was, as matter of law, negligence, the fact that the roof was constructed in the usual manner, and like that which had been used for many years on a large portion of the buildings on streets in Salem would not help the defendant. Hinckley v. Barnstable, 109 Mass. 126. Maguire v. Middlesex Railroad, 115 Mass. 239. Hill v. Winsor, 118 Mass. 251, 259. The description of the defendant as trustee was surplusage. No amendment of the writ was required, and the defendant was not injured by the refusal of the court to rule that the action could not be brought against the defendant as trustee. Odd Fellows Hall Association v. McAllister, 153 Mass. 292, 297. The testimony of Hart, that snow and ice were on the roof the day before the accident, and of Osborne, that they were there for two or three days before the accident, was clearly competent.

Exceptions overruled.