Green v. Bogsian

38 N.E.2d 339, 310 Mass. 828, 1941 Mass. LEXIS 895

• Court: Massachusetts Supreme Judicial Court
• Decided: November 7, 1941
• Status: Published

Opinion

By this action of tort brought in the Superior Court the plaintiff sought to recover compensation for personal injuries sustained by her as a result of falling on ice on a public sidewalk in front of the defendants’ premises. The defendants excepted to the denial of their motion for a directed verdict. The matter in controversy is whether the ice upon which the plaintiff fell was an unnatural accumulation of ice upon the sidewalk resulting from a flow of water from a water pipe at one end of a porch in front of the defendants’ building about fourteen feet back from the sidewalk. We cannot say, as contended by the defendants, that the somewhat vague testimony of the plaintiff, if believed, considered with the evidence as to the nature of the premises, would not warrant a finding that the ice upon which the plaintiff fell was caused by the freezing of water flowing from this water pipe across the defendants’ lawn — graded by them so as to slope toward the sidewalk — into a small trench at the side of the sidewalk, and thence upon the sidewalk. Nor can we say, also as contended by the defendants, that as matter of law the plaintiff’s testimony was so incredible in the light of common knowledge and experience that the jury could not accept it as true. See Powers v. Wyman & Gordon Co. 199 Mass. 591, 593-594; Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 384. In accordance with settled principles, permissible findings would support a verdict for the plaintiff. Cochran v. Barton, 233 Mass. 147, 149-150, and cases cited. The motion was denied rightly.