Cochran v. Barton , 233 Mass. 147 ( 1919 )

De Courcy, J.

The plaintiff slipped and fell upon the ice while walking on the easterly sidewalk of Wenham Street, Boston, in front of premises of which the defendant Greenlaw was owner and the defendant Barton was lessee. The plaintiff’s due care apparently is not in dispute; no question was raised as to the sufficiency of the statutory notice; and it is stipulated in the report that the plaintiff is to have judgment if the evidence entitled her to go to the jury as against either or both of the defendants.

The principle of law on which the plaintiff bases her claim is the familiar one, that a landowner who collects surface water into an artificial channel, such as a spout, and discharges it upon a public way, where it freezes and makes the use of the way dangerous, is the efficient cause in creating a public nuisance, and is liable for damage resulting therefrom to a traveller using due care. Hynes v. Brewer, 194 Mass. 435. Field v. Gowdy, 199 Mass. 568. Drake v. Taylor, 203 Mass. 528. Marston v. Phipps, 209 Mass. 552.

In support of the plaintiff’s contention there was evidence from which the jury could find the following facts: The land of the defendants has a frontage of forty-five feet on Wenham Street, and there is a drop of three feet in the grade from the southerly end, at Sunset Avenue, to the northerly end of the lot. The house is on an embankment about four feet above the grade of the sidewalk. At the southwesterly corner of the piazza roof is a conductor, and from its base a V-shaped wooden trough extends parallel with and to a point about twelve feet distant from the sidewalk of Wenham Street, measuring on the slope of the embankment. There was no ice on the sidewalk at noon, but in the evening there was a strip or ridge of rough ice about fifteen feet in length, and from six inches to two feet wide. It began at the foot of the bank, and widened as it went down hill. There was also ice on the bank, extending from this ridge on the sidewalk all the way up to the “drain pipe.”

In our opinion the evidence entitled the plaintiff to go to the jury on her contention that the ridge of ice on the sidewalk was formed by water which was collected in the conductor. The fact that it was poured from the spout, not directly upon the sidewalk but upon the sloping bank some feet back from the street is not conclusive against the plaintiff. In Field v. Gowdy, supra, one of the spouts;was about eleven feet from the street line. It is true that there the water reached the way over a concrete walk, while here it followed the natural grade of the embankment. But it is equally a question of fact for the jury whether the plaintiff connected the ice on the sidewalk with the water poured from the conductor. In view of this conclusion we do not find it necessary to consider the admissibility and effect of Revised Ordinances; c. 40, § 17, dealing with the discharge of waste water.

It follows that, in accordance with the terms of the report, “judgments are to be entered for the plaintiff in the sum of $400 against both defendants, the plaintiff being entitled to but one satisfaction of judgment in the two cases.”

Ordered accordingly.