198 Mass. 99 | Mass. | 1908
There is no doubt of the general proposition that one who does an unlawful act is liable in damages to any one who sustains personal injuries or other special and peculiar damages therefrom. Moeckel v. Cross & Co. 190 Mass. 280. Kirby v. Boylston Market Association, 14 Gray, 249, 251. It is for this reason that one who so constructs or maintains a structure upon his own premises as to cause an artificial discharge or accumulation of water upon a travelled way, so as by its freezing from natural causes to make the use of the way dangerous, may be held to answer to any one who, being rightfully upon the way and in the exercise of proper care, is injured in consequence of such dangerous condition. Of the numerous decisions which have applied the principle in this State, it is sufficient to refer to Hynes v. Brewer, 194 Mass. 435, and Cavanagh v. Block, 192 Mass. 63. For the same reason, one who so constructs the roof of his building as to create a danger that ice and snow will fall therefrom into the highway is liable for injuries caused thereby to any one injured by such a fall while travelling upon the highway. Shipley v. Fifty Associates, 101 Mass. 251. As was said by Chapman, C. J., in the case last cited, “ Any act of an individual, though performed on his own soil, if it detracts from the safety of travellers, is a nuisance.”
We assume that, if these facts were proved, the jury might have found that the defendant had failed to comply with the provisions of the statute, and that the injuries to the plaintiff were the direct and proximate result of his failure; or else that under the circumstances and in view of the proximity of his house to the highway and the liability of injury to travellers from the falling into the highway of accumulations of ice which naturally would be formed upon and about his gutter and conductor if the horizontal part of the latter were allowed to freeze up and thus obstruct the flow of water, due care required him
But it was agreed that at the time of the accident the defendant’s premises were in the occupation of a tenant, under a lease given by the defendant before the accident and still in force at that time. This lease contained covenants on the part of the lessee to keep the leased premises in such repair as the same were in at the commencement of the term, or might be put in by the lessor or his representatives during its continuance, with the usual exceptions of reasonable use and wear and damage by fire or inevitable accident, and to save the lessor and his representatives harmless from any claim or damage arising from neglect in not removing snow and ice from the roof of the building or from the sidewalks bordering on the premises leased. The premises leased were described as “the brick dwelling-house known and numbered thirty-three (33) on Hancock Street in said Boston ”; and it is manifest that not only the gutters, but the conductor here in question passed to the tenant as a part of the leased premises. Durant v. Palmer, 5 Dutch. 544. It was more manifestly parcel of the leased premises than the Hyatt light in Boston v. Gray, 144 Mass. 53, or the aperture over the coal cellar in Pretty v. Bickmore, L. R. 8 C. P. 401.
Under these circumstances the decisions in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, and Wixon v. Bruce, 187 Mass. 232, are decisive of the case at bar. The utmost that can be said of this conductor, with reference to the accident which has happened, is that it was capable of being used in such a manner as to create a nuisance. But that is not enough, as was pointed out by Holmes, J., in Clifford v. Atlantic Cotton Mills, ubi supra. The manifest possibility that the tenant might allow the water in the horizontal part of the pipe to freeze, and might neglect to remove the resulting accumulations of ice from the gutter and the upper part of the conductor, does not warrant the inference that this mode of using the premises by the tenant was plainly contemplated by the defendant any more than in the cases just sited. Here, as in those cases, the direct cause of
We have not found it necessary to consider whether the testimony that the defendant after this accident repaired the conductor and placed new guards upon the roof was competent to show that he assumed the obligation to make these repairs under the rule of Readman v. Conway, 126 Mass. 374, and Perkins v. Rice, 187 Mass. 28, 30. There was here a written lease; there was no doubt, as we have said, that the roof and the conductor had passed to the tenant under the demise; there was no question as to the contractual obligation to repair, or the actual occupation and control of the premises; and the language of Braley, J., in Kearines v. Cullen, 183 Mass. 298, 301, seems to be applicable. The proximate cause of this accident was the
Judgment on the verdict.