Gilbert v. City of Roxbury

100 Mass. 185

Opinion

Gray, J.

The circumstances under which ice may be considered a defect in the highway have been discussed in many recent cases. Stone v. Hubbardston, ante, 57, and cases cited. But the only one to which we need now particularly refer is that of Hutchins v. Boston. At the first argument of that case the court held that the mere fact that an ordinary sidewalk was slippery with ice was not sufficient to prove a defect in the highway. 12 Allen, 571, note. When the case came before the full court a second time, it was decided that, if the ice was not only smooth and slippery, but had remained for some time, and by snow rain, hail and frost, and the dropping of water from the eaves, had been made of such a rounded and uneven shape that a person could not walk over it, using due care, without being in danger of falling down, a jury would be warranted in finding that it was a defect in the highway. 97 Mass. 272, note. This case cannot be distinguished from that as first presented to the court. The bill of exceptions shows, that there was proof that it was slippery everywhere in the vicinity; the person injured herself testified that there was nothing which caused her fall but the slipperiness of the ice, and that she did not think that the shape of the sidewalk had anything to do with the rounding of the ice on the walk at the time and place at which she fell; and no evidence whatever was introduced that there was any danger or defect which would not have existed if the sidewalk and the ice had been perfectly level. The jury were therefore rightly instructed that the city was not liable. Exceptions overruled