Adams v. Inhabitants of Chicopee

| Mass. | Oct 18, 1888

Knowi/eoh, J.

At the trial of this case, there was evidence tending to show that the concrete walk upon which the plaintiff fell was of such construction, or was in such condition, as to retain water in a hollow or basin upon it, and so, in freezing weather, to cause the formation of smooth, slippery ice.

Upon this part of the case the jury were instructed that “ the freezing of smooth, level ice does not constitute a defect in any way, and the fact that there are such hollows or basins in the sidewalk as to make them fill with level water which cannot pass off, and that level water freezes, if it freezes into smooth, level ice, does not constitute a defect in the way.” Also, that if they found “ that there was such a formation of this sidewalk as to produce merely, in the natural and ordinary operation of things, smooth, level ice, then that formation would not be a defect.” “ The plaintiff’s counsel excepted to so much of the charge as related to smooth, level, and slippery ice not being a defect under the conditions named in the charge.”

It is strenuously argued for the defendant, that the exception was too general, and that it is not open to the plaintiff to call in question these instructions. There may be cases in which an exception taken in this form would not sufficiently indicate to the presiding judge the particular parts of his charge which were objected to, nor give him the opportunity which -he ought to have to correct an error, if, upon his attention being called to it, he found that he had made one. But in this case we are of opinion that the statement in relation to the legal propositions which were intended to be excepted to, was well understood by the presiding judge and the defendant’s counsel. The exceptions show that the plaintiff’s counsel contended, in his argument to the jury, that the town would be liable for an accident happening upon smooth, slippery ice, formed under the conditions afterwards referred to in the quoted parts of the charge. The substance of the plaintiff’s contention was stated in the instructions, and the plaintiff’s counsel, in reply to a question by the judge, during the charge, asserted his claim in the same terms as befoi’e.

The question of law involved in the exception was decided in the case of Pinkham v. Topsfield, 104 Mass. 78" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/pinkham-v-topsfield-6416008?utm_source=webapp" opinion_id="6416008">104 Mass. 78. In that case the jury were instructed, that, “if there was some special cause for the formation of ice in that particular locality, owing to the construction or condition of the road, it wpuld be a defect, if it rendered the way unsafe and dangerous, though it was only smooth and slippery”; and the ruling was unanimously sustained by this court. The doctrine is stated in Fitzgerald v. Woburn, 109 Mass. 204" court="Mass." date_filed="1872-01-15" href="https://app.midpage.ai/document/fitzgerald-v-inhabitants-of-woburn-6416769?utm_source=webapp" opinion_id="6416769">109 Mass. 204, in similar terms; and in the leading case of Stanton v. Springfield, 12 Allen, 566, it is said that “ a way may be defective by being so improperly constructed as to induce a special or constant deposit of ice in a particular locality.” In the decision in Billings v. Worcester, 102 Mass. 329" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/billings-v-city-of-worcester-6415781?utm_source=webapp" opinion_id="6415781">102 Mass. 329, there is nothing in conflict with this doctrine, although some of the reasoning in the opinion seems to lead away from it; but through the change in the law by the enactment of the statute of 1877, c. 234, that reasoning has become inapplicable to recent cases. Pub. Sts. c. 52, § 18. Post v. Boston, 141 Mass. 189" court="Mass." date_filed="1886-02-25" href="https://app.midpage.ai/document/post-v-city-of-boston-6421964?utm_source=webapp" opinion_id="6421964">141 Mass. 189. Blake v. Lowell, 143 Mass. 296" court="Mass." date_filed="1887-01-07" href="https://app.midpage.ai/document/blake-v-city-of-lowell-6422280?utm_source=webapp" opinion_id="6422280">143 Mass. 296.

Exceptions sustained.