Dipper v. Inhabitants of Milford

46 N.E. 122, 167 Mass. 555, 1897 Mass. LEXIS 393

• Court: Massachusetts Supreme Judicial Court
• Decided: February 25, 1897
• Status: Published

Opinion

Lathrop, J.

The only question raised by the report in this case is whether there was sufficient evidence of due care on the plaintiff’s part to entitle her to go to the jury. We are of opinion that there was. From the evidence the jury could well have found that, although the plaintiff knew that there was ice on the sidewalk, she passed over it a distance of twenty feet before she reached the more .dangerous place where she fell. When she reached this place it was a question whether to proceed, or to go back, or to attempt to cross the street. We cannot say, as matter of law, that the plaintiff was not in the exercise of due care in determining to go ahead.

While it may be said to be negligence, as matter of law, to step into an open trench, it is a matter of common knowledge that ice on a sidewalk often can be walked over with safety. It must be an exceptional case, where an attempt to pass over such ice can be said to be negligent, as matter of law. The general rule in such a case is to leave the question of the plaintiff’s care to the jury. Dewire v. Bailey, 131 Mass. 169, and cases cited.

Judgment on the verdict.