238 Mass. 183 | Mass. | 1921
This is an action of tort in which the plaintiff seeks to recover damages for personal injuries sustained by him between fifteen minutes before two o’clock and two o’clock in the afternoon of February 11, 1918, by reason of a fall upon the sidewalk in front of a building on Winter Street, a highway in Boston. The defendant had a lease of the entire building, but occupied only the first floor and basement, having subleased the upper floors.
The plaintiff gave notice of his accident in a manner conformable to the requirements of St. 1908, c. 305, as amended by St. 1913, c. 324. See G. L. c. 84, § 21.
He elected to go to the jury only on the first count of his declaration, which alleged that it was the duty of the defendant immediately after the fire to clear away the broken glass, and to see that no harm came to persons using the sidewalk, either from the continued presence of the glass, or through the artificial accumulation of water upon the leased premises and its discharge from said building in unusual quantities upon the sidewalk; and that the defendant did not “clear away said broken glass so as to render the sidewalk . . . safe and suitable for travellers and passers-by, and did not take proper steps to remove the artificial accumulation of water discharged from said building ... at a time when the natural result was that the same should freeze and expose, travellers to the danger of injury by falling and to form ice making said sidewalk uneven, slippery and unsafe for public travel, and to constitute a public nuisance in said highway.” At the conclusion of the evidence, the defendant duly moved that a verdict be directed in its favor.
The defendant was not liable because of the original accumulation of ice and glass upon the sidewalk. It was not caused by any wrongful act or omission on its part. Kirby v. Boylston Market Association, 14 Gray, 249. Sanborn v. McKeagney, 229 Mass. 300.
Inasmuch as the defendant did not cause the accumulation of
The statutory provision as to removal of obstructions in public ways is contained in G. L. c. 84, § 7, which makes it the duty of surveyors of highways and road commissioners to remove whatever obstructs the public ways within their respective jurisdictions, or endangers, hinders or incommodes persons travelling on such ways, and further to cause snow to be removed or trodden down so as to make such ways reasonably safe and convenient. In Boston the authority so conferred is exercised through the proper department of that city. See St. 1885, c. 266, § 6; St. 1909, c. 486, §§ 5, 9, 13. No statute has been called to our attention, or found, imposing any obligation other than such as exists at common law upon abutters to remove obstructions.
The sweeping, after the accident, of the glass and ice from the sidewalk did not prove or tend to prove any wrongful act or omission by the defendant, or amount to an admission of liability.
The exception of the defendant to the refusal of the trial judge to direct a verdict in its favor must be sustained, and judgment ordered for the defendant under G. L. c. 231, § 122.
So ordered.