197 Mass. 480 | Mass. | 1908
This is an action under R. L. c. 51, § 17, to recover damages for the death of the plaintiff’s intestate, to be assessed with reference to the degree of the defendant’s culpability. If the right given by this section is independent of the right given by § 18 to recover compensation for conscious suffering during his lifetime, caused by an injury received from a defective highway, under either section the plaintiff must prove that the municipality' failed to maintain the way in a reasonably safe condition for the use of travellers. Bowes v. Boston, 155 Mass. 344. It is undisputed that, when bare, the street was in suitable Tepair, and the principal question is, whether an opening four feet in length, and about one and a half feet in depth, excavated through snow and ice, near the curb, for the purpose of allowing surface water to drain into a catch basin, constituted a defect for which the defendant is responsible. The answer turns upon the construction to be given to R. L. c. 51, § 19, which relieves cities and towns from liabilities for injuries caused by snow or ice thereon, if the portion of the way where the accident happened was at the time otherwise reasonably safe and convenient for travel. Before the statute, if in consequence of public travel over accumulated snow or ice the surface became rough and uneven to such an extent as to render its use dangerous, the way might be found defective. Stanton v. Springfield, 12 Allen, 566. But while this liability no longer exists, the plaintiff contends that the defendant is not within the exemption, as the statute was not intended to say that an. artificial condition created by the municipality, or by a volunteer of whose acts it could be found to have had constructive notice, for the express purpose of draining the streets of water from melting snow and ice, may not create an actionable defect. The argument accordingly is, that it was not merely snow and ice from climatic causes, or as changed into unnatural formations arising from the exigencies of public use, into which the wheels
Judgment for the defendant.