Drake v. Taylor

89 N.E. 1035, 203 Mass. 528, 1909 Mass. LEXIS 968

Opinion

Rugg, J.

The principle of law which governs this case is plain. A landowner who collects water into a definite channel by a spout or otherwise and pours it upon a public way whereby, through the operation of natural causes, ice there forms, is the efficient cause in the creation of a nuisance and is liable for whatever damage results as a probable consequence. Among such consequences may be the slipping and injury of a traveller using due care. Field v. Gowdy, 199 Mass. 568. Coman v. Alles, 198 Mass. 99.

The defendants maintained a conductor through which water might pass upon a public sidewalk. Their only contention is that the ice upon which the plaintiff fell and received her injuries was not formed of water from that source. There was evidence tending to show that on the morning of the day of the accident

Footnotes

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* several inches of fresh snow were on the roof and veranda drained by the defendants’ conductor; that it thawed a good deal during the day and was freezing at night; that on other occasions, when the spout and conductor wei'e in the same condition as at the time of the injury to the plaintiff, water was discharged freely from the conductor and flowed “ all over the sidewalk ” and “ all along towards Newcomb Street”; and that the place where the plaintiff slipped was about two feet toward Newcomb Street from the end of the spout. There was other testimony tending strongly to contradict this and to show that there was no ice the existence of which could be traced to the defendants’ conductor. But all these divergent statements were for the jury to weigh, and it could not have been ruled as matter of law that the defendants must be exonerated.

Exceptions overruled.

The plaintiff’s fall occurred between six and seven o’clock in the evening of January 29,1907, after dark.