211 Mass. 298 | Mass. | 1912
There was evidence from which it might have been found that the plaintiff, while on the sidewalk of Washington Street in Boston, was struck by snow thrown from the defendant’s building by one of its employees while removing an accumulation occasioned by a snow storm.
The defendant urges that the plaintiff is precluded from recovery because she was not in the exercise of due care. This defense is based on the facts that the accident happened on a stormy morning, when there had been a snow fall of about eight inches, and that the plaintiff after seeing a mass of snow and ice fall on the sidewalk in front of her paused a moment, stepped back and then continued on her course without doing anything for her protection, and was injured. There was evidence that no warning by rope, guard or otherwise was upon the sidewalk. She was a traveller upon a public way, and was not bound to anticipate danger in going forward, even under the circumstances here disclosed. It cannot be ruled as matter of law that the ordinarily prudent person must expect another fall of a mass of snow upon the sidewalk because there has been one such fall. The circumstance that this came from the negligence of the defendant’s servants was significant as bearing upon a reasonable probability that it would be repeated. The due care of the plaintiff was to be determined as a fact in the light of all the attendant conditions. Linnehan v. Sampson, 126 Mass. 506. Dipper v. Milford, 167 Mass. 555. Frost v. McCarthy, 200 Mass. 445, and cases there collected.
The defendant further contends that as the plaintiff gave no notice to the defendant of her injury within ten days after it was received, she is precluded from recovery by St. 1908, c. 305. This statute requires the notice set forth in R. L. c. 51, §§ 20-22, when an action is founded upon a defective condition of premises or an adjacent way caused by or consisting in part of snow or ice.
Exceptions overruled.
