192 Mass. 163 | Mass. | 1906
The plaintiff does not complain of the ruling of the judge at the trial that she was not entitled to recover against the defendant Walsh, but contends that there was evidence on which the jury might have found in her favor against the defendant Yudelman, who was the tenant and occupant of a
It may be assumed that one might be liable for a special and peculiar injury caused by his own creation of a nuisance upon the highway, as by the artificial accumulation of ice and snow upon the sidewalk in front of his premises; and that this liability would extend to the case of one who discharged water upon the sidewalk at a time when the natural result would be to freeze the water and expose travellers upon the sidewalk to the danger of injury from falling. Davis v. Rich, 180 Mass. 235. Leahan v. Cochran, 178 Mass. 566. Shipley v. Proctor, 177 Mass. 498. If Yudelman did pile up snow upon any part of this sidewalk in such an accumulated mass as essentially to - interfere with travel thereon, or by means of the operation of natural causes which he ought to have foreseen to create danger by its melting and freezing, then the plaintiff, if herself in the exercise of due care, could maintain an action against him for a personal injury caused by this conduct on his part. Kirby v. Boylston Market Assoc. 14 Gray, 249, 251. And see McMahon v. Lynn & Boston Railroad, 191 Mass. 295; McDonald v. Toledo Consolidated Street Railway, 74 Fed. Rep. 104.
The real question accordingly is whether there was any evidence that Yudelman did pile up the snow into an artificial accumulation upon any part of this sidewalk; and we cannot find that there was. The plaintiff’s evidence went no further than to the effect that the sidewalk, being nine or ten feet wide, had
The view of the case which we take makes it unnecessary to determine whether the jury would have had the right to find that the plaintiff was herself in the exercise of due care, a question certainly not free from difficulty.
Exceptions overruled.