Luther v. City of Worcester

97 Mass. 268 | Mass. | 1867

Bigelow, C. J.

The ruling of the court in this case seems to have been founded on a misapprehension of the recent decisions of this court in Stanton v. Springfield, 12 Allen, 566, and the other cases reported therewith in the notes. The point of those decisions was this, that a way properly constructed and kept in ouch condition as to be reasonably safe and convenient for travel at all seasons of the year, would not become defective and out of repair by reason of the fact that it was covered with a smooth and even surface of ice which rendered it slippery and so exposed persons passing over it to fall down and to danger of injury. An examination of the cases referred to will show that it was not intended to restrict the liability of cities and towns so as to exclude cases of injury happening by reason of the accumulation of ice or snow in the streets or ways in ridges or drifts, or in consequence of snow or ice being permitted to remain in a rough and uneven condition; but that the language of the court is carefully guarded and limited so that it is only held that a defect in a way does not exist where nothing is shown but the existence of ice which is not otherwise dangerous or unsafe, except that it presents a smooth and polished surface over which it is difficult to pass without being exposed to the risk of a fall. In a climate like ours, it would be impossible to prevent the existence of ice in the highways, or to avoid the consequences of its being in its natural condition when formed on smooth and level surfaces. It cannot be supposed that the legislature, in making towns liable for damages caused by defects in highways, intended to establish a rule or standard of diligence to which it would be impracticable to conform by the use of the utmost vigilance and care. It would seem to be a sufficiently strict interpretation of the statute to hold that under its provisions a city or town would be liable if it neglected or omitted to take due precautions against accidents arising from the accumulations in the highways of ice or snow in drifts'or ridges, or from its being in such condition from unevenness or roughness or other causes as, combined with its slippery nature, would render it unsafe and dangerous to passengers.

On an examination of the evidence offered at the trial, it appears to us that it tended to prove that the street at the place where the plaintiff was injured was defective, not merely from the existence of a smooth and even surface of ice on the sidewalk which was slippery, but also from ice which had been suffered to remain there after being trodden down into a narrow ridge, presenting an oval surface, raised above the other parts of the brick way. This ridge seems to have been four inches in height at the centre and to have slanted rapidly towards the surface of the bricks from which the snow had been removed before any ice had formed. If such was substantially the condition of the way, it was certainly shown to be unsafe and dangerous, not solely because it was slippery from ice, but because it had become rough and uneven from artificial causes to such an extent as, in connection with its slippery surface, to create a defect in the way within the fair intent and meaning of the statute. New trial granted ^*

* A similar decision was rendered in the following case from Suffolk which was argued at Boston in November 1867: