309 Mass. 1 | Mass. | 1941
The plaintiff, a tenant at will of the defendant in its twelve-apartment building in Springfield, was injured at 6:30 a.m. on Tuesday, January 19, 1937, when, as he was leaving the building by the common exit, he slipped on a ridge of ice on the outside cement step. The defend
The step on which the plaintiff fell was about six feet long and extended twenty-two inches from the front of the building. Directly over the doorway there was a steep, sloping, shingled canopy or shield extending twelve inches from the wall of the building and along “substantially the entire ” length of the step. The method of construction and state of repair of the doorway, step and canopy were the same when the plaintiff fell as they were when his tenancy began in October, 1931, and the doorway, step and canopy were not out of repair at any time during that period.
The plaintiff testified that on the step where he fell there was a ridge of ice about five inches wide at its base and one and one half inches high; that it extended the entire length of the step, was about twelve inches out from the wall of the building and was directly under the outer edge of the canopy; and that the top of the ridge was irregular, “some places a little higher than others.” The only other evidence as to the ice on the step came from two witnesses, one of whom testified that it was about half way between the door and the outside of the step, about an inch and a half in height, irregular and humpy at the top, and that its base was about five inches wide. The other testified that at about 10:15 a.m. on the day of the injury, she noticed that the step was covered with ice and that there was a ridge of about an inch and one half or two inches of ice extending along the middle of the step and frozen to it; and that its top surface was irregular.
We assume, without deciding, that it could have been found from evidence which need not be recited that, by virtue of an implied term of the contract of letting, the defendant had undertaken to use reasonable care to keep the step clear of snow and ice, or, at least, to sand it. See Nash v. Webber, 204 Mass. 419, 424, 425; Erickson v. Buckley, 230 Mass. 467; Bell v. Siegel, 242 Mass. 380. Compare O’Donoughue v. Moors, 208 Mass. 473; Boulton v.
The only evidence, direct or inferential, in addition to that already narrated, as to how or when the ice came to be on the step was from the plaintiff and two other witnesses. The plaintiff testified that on Sunday, two days before his injury, it “snowed”; that it was freezing on Monday; that he thought it turned to a thaw on Monday evening; that he remembered there was a slight thaw between Sunday and Tuesday morning when he fell, “which thaw he thought was Monday night, and that there was slush on Monday night when he returned home about six o’clock.” He also testified that immediately after he fell he went to his work and walked in the roadway “because it was so slippery on the sidewalks”; that at that time he noticed there was a thin skim of ice over the brick walk leading from the step to the street. The plaintiff’s wife testified that there was “snow and sleet” on the Sunday preceding the injury; that it was foggy on Monday morning and evening; that on Tuesday morning when she went out, at about eight o’clock, the streets were “mushy and a little slippery, it was slightly melted and yet slippery and that the sidewalks in that vicinity were slippery.” The third witness testified that on Tuesday morning when she left the house at 10:15 there were patches of ice and water in sections of the public street; that in the late afternoon before the day of the accident it was slippery and the side
It appears that this witness also testified that she left the house about four o’clock on Monday afternoon and returned about 5:15. The bill of exceptions then states: “The following testimony was then received, subject to the defendant’s objection and exception”; and this is followed by what appears to be a precise transcript from the stenographic record, the substance of which is here given. The witness, who was called by the plaintiff, was asked by his attorney if she observed anything on the step when she went out or in on Monday afternoon, but she was not permitted to answer. The trial judge thereupon said that he was admitting the question “on the implied promise you made by offering to show that the weather conditions hadn’t changed between the time she is telling about and the time of the accident.” Whereupon counsel for the plaintiff stated that he offered to show the length of time that the accumulation of ice was there, as bearing upon notice. The judge then said: “Do you offer to show also that the ice that was there the morning of the accident was the same ice that she saw there the day before?” Counsel replied: “I can only go this far in proving that, to show . . . the general appearance of the ice itself, as being the same.” The judge then said: “You can ask her whether so far as she knows anybody removed any ice from the step after the time she went out on the afternoon before.” The witness was then asked: “So far as you know . . . was any ice removed from the step between the time you went out the afternoon before and the following morning at 10:15?” She answered: “Not as far as I know.”
It may be that the trial judge assumed that the witness, if permitted, could testify as to ice upon the step on the afternoon before the plaintiff fell. The reference by him to the “implied promise” that had been made seems to indicate that there may have been a conference at the bench
Although it snowed and there was sleet on Sunday, there is nothing to show the duration of the storm, if it was a storm, the quantity of the snow, or sleet that fell, and there is no reference to the presence of snow as such anywhere thereafter. The plaintiff himself testified that there was slush Monday night at about six o’clock and that there was a slight thaw which he thought was on that night.
The building in question is three stories in height, and, from the photograph that was in evidence, it appears that it has a flat roof with a substantial overhang. If there was snow on the edge of the roof, as commonly is the case in our winters, and the snow immediately over the doorway
We are not here dealing with comparatively fixed conditions shown to be existent at a given time from which some inferences as to a prior existence may be permissible. See Beacon Trust Co. v. Wright, 288 Mass. 1, 5, and cases cited. Even the rule that a usual and habitual state of things, dependent upon natural causes and constantly producing the same results, has a legitimate tendency to show that the results were in existence at a particular time, has its limitations. “Such evidence, however, would not be competent for the direct purpose of showing the shape or dimensions of the ridges of ice on the day when the accident occurred, unless it was so near in point of time, or accompanied with such other evidence of temperature and climate in the mean time, as to furnish a presumption that its condition remained unchanged.” Berrenberg v. Boston, 137 Mass. 231, 233. Even if we assume that the ice on the step, as described, would require some time to form, there would then be the question as to the length of that time. We are of opinion that the record affords no satisfactory answer to this question. See Manning v. Smith, 299 Mass. 318, 320; Collins v. Collins, 301 Mass. 151, 152, and cases cited. The case is distinguishable from cases like Commonwealth v. Arone, 265 Mass. 128, 130.
It did not appear that the defendant knew the ice was-there. Accordingly, the plaintiff was bound to show, as a part of his case, that it had been on the step long enough so that the defendant, in the exercise of reasonable diligence, should have known it was there. This he was not required to do to a mathematical certainty, nor to exclude other possible factors if the essential fact was fairly established. But he. was bound to introduce enough evidence to remove the existence of the essential fact from the realm
It is unnecessary to consider other exceptions of the defendant.
Exceptions sustained.
Judgment for the defendant.