Smethurst v. Proprietors of Independent Congregational Church in Barton Square

148 Mass. 261 | Mass. | 1889

Devens, J.

It is the contention of the defendant, that, as the declaration alleges negligence on the part of the defendant, the plaintiff can maintain it only by showing a want of ordinary care in the construction or management of its building.

When parties in the management of their own estates so use them that injury in the ordinary course of things may fairly be expected to result to others in the enjoyment of their estates, or in the exercise of their lawful rights, as such use is wrongful, if injury does thus result, it may properly be said to have occurred by their negligence. The instructions as given on this point were in the language used by this court in Shipley v. Fifty Associates, 106 Mass. 194. They deny to the defendant the right to erect and maintain a building, even if of no unusual construction, so near the street that ice or snow will so fall from it in the ordinary course of things as to endanger travellers who are passing in the highway, or using the same rightfully for the purpose of travel. Shipley v. Fifty Associates, like the ease at bar, was an action brought for negligence on the part of the defendants in the use of their property. It is there said that the defendant “ has no right so to construct his building that it will inevitably, at certain seasons of the year, and with more or less frequency, subject his neighbor to that kind of inconvenience; and no other proof of negligence on his part is needed.”

The defendant urges, that as in that case the building of the defendant did not encroach upon the highway, while in the case at bar it is shown to have done so, the eaves projecting about two feet beyond the wall of the building and into the street, the injury to the plaintiff did not result from its carelessness or negligence, but from the encroachment over the highway, and thus, even if the defendant would be liable for a nuisance or in trespass, it is not liable in this action. The wall of the defendant’s building was on the line of the highway ; but the portion of the roof projecting over the highway was a part of the roof as the building was constructed and maintained, and if injury resulted therefrom it was incidental to the construction and use by the defendant of its property. Nor was such use the less properly described as careless and negligent because it was also distinctly wrongful.

The second instruction requested by the defendant was a general statement, taken from McDonald v. Snelling, 14 Allen, 290, the accuracy of which we have no occasion to question. If that given by the presiding judge instead of it was correct, adapted to the case, and all that the case required, the defendant can have no ground of objection because the words asked by him were not used. The instruction as given was: “ The striking of the horse by the snow, if it caused him to start, would be a direct proximate cause of the injury, although the ice or snow may not have hit the plaintiff.” This instruction assumes that the fall of ice or snow upon the horse was found to have been due to the negligence of the defendant, as upon all parts of the case not especially made the subject of exception full and appropriate instructions were given.

It is well settled in this Commonwealth, that one who violates a duty owed to others, or commits a tortious or wrongfully negligent act, is liable not only for those injuries which are the direct and immediate consequences of his act, but for such consequential injuries as, according to common experience, are likely to, and in fact do, result from his act. McDonald v. Snelling, 14 Allen, 290. Wellington v. Downer Kerosene Oil Co. 104 Mass. 64. Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277. Derry v. Flitner, 118 Mass. 131. That a horse struck by falling ice or snow would start, and would thus be liable to injure a person standing near or upon the wagon, and who was engaged in loading or unloading, is so entirely according to the natural and usual sequence of events that it cannot have been necessary to submit the question whether one occurrence might probably be expected to follow the other.

The defendant further contends, that the plaintiff was not using the street as a traveller, and therefore had not the rights which a traveller or an adjoining proprietor might have to be protected from the effects of a fall of snow. The plaintiff at the time of the accident was engaged in unloading from his team goods which were to be deposited in the basement of the defendant’s building. The exact position of the plaintiff’s team was in dispute. The presiding judge declined to instruct the jury that the plaintiff was not a traveller, and instructed the jury that the plaintiff had the right to use the way for the transportation of goods in a proper manner, not unreasonably obstructing or interfering with others, adding: “ He has a right to stop in the road for the purpose of getting out or getting in, or of unloading a team in a reasonable manner; and what is a reasonable manner is a question of fact for the jury to pass upon under all the circumstances of the case.” Under this instruction, the jury must have found that he was unloading his team in a reasonable and proper manner when the accident occurred.

A traveller lawfully usiug the way has the same rights to enjoy such use undisturbed as if he were the owner in fee simple. Shipley v. Fifty Associates, 101 Mass. 251; S. C. 106 Mass. 194. In order to be a traveller, it is not necessary that one should be constantly moving, if he is a pedestrian, or that the vehicle he drives, or that in which he is conveying goods, if he is using one, shall be continuously in motion. It would certainly be impossible to use the highways conveniently for the ordinary purposes of business or social life with teams or lighter carriages, if occasional stops were not permitted to enable those using them to load and unload teams, to receive and deliver goods, to enter shops and stores, and to make brief calls of business or even of a social character. During these stops, if reasonable in duration, one should not lose his rights as a traveller, and the protection thus afforded to his person or property. O’Linda v. Lothrop, 21 Pick. 292. Judd v. Fargo, 107 Mass. 264.

In regard to the exclusion of the questions to the witness, Pinnock, it is sufficient to say that it does not appear by the bill of exceptions what his answers would have been, or what the defendant offered to prove by him, if he were allowed to answer. It has been often decided in such cases that the bill of exceptions must contain enough to show that the excepting party has been actually injured. Warren v. Spencer Water Co. 143 Mass. 155, 164. Exceptions overruled.