Marston v. Phipps
95 N.E. 954
Mass.
1911
Check Treatment
Sheldon, J.

This case was tried against the female defendant alone, the other defendant named in the writ being dead. There was evidence for the jury on the question of the plaintiff’s due care. Knowlton, C. J., in Cavanagh v. Block, 192 Mass. 63, 64, and cases cited. The jury could have found also that her injury was due to her having slipped on a ridge of ice upon the sidewalk. They could have found that the bay window on the defendant’s building projected beyond the street line and over the sidewalk, so that snow would and did accumulate upon its top and there melt and drip from the sloping planes which formed its top and roof, and so fall upon the sidewalk. They could have found further, although as to this the evidence was meagre, that the ridge of ice upon which the plaintiff fell had been formed in this way, by the freezing of water which had dripped from the projecting bay window.

Upon such findings the plaintiff was prima fade entitled to recover. ' The case would come under the principle that one who so constructs or maintains a structure upon his own premises as to cause an artificial discharge or accumulation of water upon a public way, which by its freezing makes the use of the way dangerous, will be held liable to one who, being rightfully upon the way and in the exercise of due care, is injured in consequence *555of such dangerous condition. Drake v. Taylor, 203 Mass. 528. Field v. Gowdy, 199 Mass. 568. Hynes v. Brewer, 194 Mass. 435.

The fact that the defendant had let different parts of her building to different tenants at will is not decisive in her favor. So far as appears, she retained control of the outside and roof of the bay window. She did not make merely occasional repairs upon the building as a matter of favor; it could be found that she procured and paid for all the repairs that were made. Perkins v. Rice, 187 Mass. 28, 30. Readman v. Conway, 126 Mass. 374. It could be found from her own testimony that she assumed the care of keeping the sidewalk clear of snow and ice, and employed Pitman to see to this for her. Moreover, if she let the building with the bay window overhanging the sidewalk of a public way (see Opinion of the Justices, 208 Mass. 603, 625) and constructed as it could be found that this was, the case would be within the rule of Maloney v. Hayes, 206 Mass. 1, and she would herself be responsible for the nuisance caused by her tenant’s using the leased premises in the manner in which they were adapted and designed to be used.

The plaintiff’s right of action is not affected by the provisions of St. 1908, c. 305, passed since her action was brought.

Perhaps the defendant might have demurred to the declaration for a misjoinder of counts. But that was not done; and the case rightly proceeded against the only defendant who was alive and was served on. Brown v. Kellogg, 182 Mass. 297. Elliott v. Hayden, 104 Mass. 180.

The case should have been submitted to the jury upon the third count, which alone was relied on.

Exceptions sustained.