323 Mass. 690 | Mass. | 1949
This is an action to recover for personal injuries sustained by the plaintiff on February 13, 1946, as a result of a fall on an accumulation of ice on a sidewalk on Parsons Street in that part of Boston known as Brighton. The action rests entirely upon a count for nuisance consisting of a drain pipe so located on premises of the defendant as to cause ice to form on the public sidewalk. The trial judge directed a verdict for the defendant and reported the case.
Important facts are not in dispute. Sometime before 1941 the Boston and Albany Railroad, of which the defendant is the lessee, constructed an overpass to carry its tracks over Parsons Street. This overpass was just wide enough between_ abutments to take care of vehicular traffic on Parsons^Street under the railroad, but made no provision for sidewalks. When, about 1941, it was desired to provide
There was evidence that the railroad “wanted” the city to fill the space between the westerly wall of the tunnel and the easterly abutment of the bridge with cracked stone instead of solid fill “in order to relieve any water pressure that would accumulate between the two walls.” This was done, and the drain pipe, six inches in diameter, was inserted by the city at the bottom of this fill just above the level of the sidewalk leading out of the northerly end of the tunnel. The pipe ran from a point within the stone fill through the remaining portion of the northerly wing wall of the abutment of the overpass and was immediately next to, but not in, the westerly wall of the new tunnel. It was therefore “located in premises under the control of the defendant” and not on land taken by the city. It did not project beyond the northerly face of the wing wall which was within a few inches of the northerly end of the new tunnel wall.
There was error in directing a verdict for the defendant.
Although the defendant did not actually insert the pipe in its wall, there was evidence that the pipe was inserted to serve a purpose useful to the defendant by draining the stone fill .which the defendant had requested be placed between the two walls; that the bridge engineer of the Boston and Albany, who was on the job acting for the
There was evidence that this nuisance had its source upon the defendant’s land, and that, if not originally created by the defendant, it was adopted and maintained by it. Staple v. Spring, 10 Mass. 72, 74. Leahan v. Cochran, 178 Mass. 566. Hynes v. Brewer, 194 Mass. 435, 439. Fuller v. Andrew, 230 Mass. 139, 145-147. Attorney General v. Boston & Albany Railroad, 246 Mass. 292, 297. Towner v. Melrose, 305 Mass. 165, 169. Whittaker v. Brookline, 318 Mass. 19, 26-27.
There was evidence that the nuisance was the cause of the plaintiff’s fall and injury. Troy v. Dix Lumber Co. 300 Mass. 214. Hooper v. Kennedy, 320 Mass. 576.
There was no evidence that the city had allowed the tiny gutter above mentioned to become clogged so that the water could not run off, and, even if it had, that fact would not have excused the defendant. Field v. Gowdy, 199 Mass. 568, 571-572.
In accordance with a stipulation of the parties, .judgment is to be entered for the plaintiff in the sum of $3,500.
So ordered.