206 Mass. 1 | Mass. | 1910
The plaintiff, while lawfully using the street as a traveller, was injured by falling on an accumulation of ice, which had been formed from water collected and discharged upon the sidewalk through a spout attached to a conductor leading from the roof of the defendant’s house.
A landowner or occupier of land cannot lawfully collect surface water into a definite channel and discharge it upon a highway, making it unsafe for the use of travellers. The act creates a public nuisance, and a traveller who suffers injury therefrom can sue the wrongdoer. Hynes v. Brewer, 194 Mass. 435.
But as the premises at the time of the accident were in the possession and control of a tenant at will, the defendant contends that he is not responsible. If during the tenancy the
But if the unsafe condition of the sidewalk could have been attributed to the tenant’s negligence, the defendant as owner also would be liable if at the time of letting the conductor and spout were adjusted to form a permanent arrangement for the continued discharge of drainage. Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49. Lufkin v. Zane, 157 Mass. 117, 122. The connection of the spout with the conductor was not in dispute, and it was for the jury to decide upon conflicting evidence as to the location of the outlet or place of discharge. If they determined that when the tenant entered into occupation the spout projected beyond the fence through which a hole had been cut and fitted for the purpose, they would be justified in finding further that the combination was used and had been designed by the defendant for the disposal of melting snow and water coming from the roof. The defendant let the property for hire with knowledge of these conditions, and if the formation of ice might have been prevented by the tenant’s detaching the spout or in some way confining the overflow within the enclosure, the premises were so constructed as to be permanently dangerous to travellers. Having created a continuing nuisance to which the
The verdict for the defendant was improperly ordered, and there must be a new trial.
Exceptions sustained.