Morse v. City of Boston, 109 Mass. 446

109 Mass. 446 | Mass. | 1872

Chapman, C. J.

The only question reserved is, whether the presiding justice erred in refusing to direct the jury to return a verdict for the defendants on the ground that the whole evidence showed that the plaintiffs had failed to prove a case, or to show a defect in the highway for which the defendants are responsible, or to show that' the female plaintiff was in the exercise of due care, or which would justify them in finding a verdict for the plaintiffs. In other respects, his instructions were not excepted to.

There is positive evidence that the female plaintiff used due care; and that point is not argued for the defendants. The defence is placed wholly on the other ground taken, namely, that the record shows no evidence of a defect in the street where the accident occurred, and that the female plaintiff testifies, as to the cause of her accident, that it was purely the slipperiness of the ice, and nothing else, which made her fall, and that she did not stumble.

It is true that she does so testify. But she also testifies that the ice was “glare and hard and hubbly and in ridges,” and “rough.” Her husband describes it more particularly. The accident occurred at noon on Sunday the 7th of March 1869. He says there was a heavy snow storm in February, and heavy drifts were formed. A narrow path was shovelled, which was three feet in width. On the Wednesday next previous to the day of the accident, it snowed and rained; and water ran in the pathway and scoured it out. On Friday it was exceedingly cold, and there was a layer of smooth ice. It had frozen in layers, so as to be uneven. The water spread out and “ cut round among the bubbles, and when it froze it was in the same manner, leaving it rough and very smooth.” He evidently applies the word smooth to the surface of that which was uneven in form. On Sunday, after the accident, it was in the same situation. Charles Morse, who was with the female plaintiff at the time of the accident, also testified that the sidewalk was “ hollow ” and the ice was “ ridgy.” Other witnesses corroborated this statement; particularly Miss Morse.

The expressions of the female plaintiff, which are relied upon by the defendants, are to be taken together with the other evidence ; and the jury would be authorized to find, upon all the evidence, that the “ hubbly ” surface of the ice made its mere slipperiness more dangerous; and a majority of the court are of opinion that the evidence authorized the jury to find that the highway was defective, within the recently decided cases of Luther v. Worcester, 97 Mass. 269; Hutchins v. Boston, Ib. 272 note Street v. Holyoke, 105 Mass. 82; and Fitzgerald v. Woburn, ante, 204.

Exceptions overruled.