Lucas v. Thayer

160 N.E. 810, 263 Mass. 313, 1928 Mass. LEXIS 1140

• Court: Massachusetts Supreme Judicial Court
• Decided: April 4, 1928
• Status: Published

Opinion

Sanderson, J.

This is an action of tort to recover damages for injuries to the plaintiff caused by falling on ice formed by water alleged to have been gathered upon the defendant’s land and negligently discharged upon the sidewalk through an artificial channel on the defendant’s property.

The plaintiff was walking in front of the driveway leading from the defendant’s premises and fell on the ice at the place indicated by a cross on a plan. The evidence tended to show that this spot was approximately two feet, from the curbing and about in fine with the side of the driveway which was near the boundary line of the defendant’s lot. The ice was described as coming over the retaining wall into the driveway and on to the sidewalk at the place where she fell, and there was ice along the driveway edge. The witness stated that she did not know how far back on the driveway there was ice; that she thought it covered a space on the curbing about a foot wide and did not extend far back into the driveway.

The jury found in answer to special questions that the plaintiff was injured by falling upon the ice on the sidewalk formed from water which flowed from the defendant’s land; and that she was not guilty of contributory negligence. The judge ordered a verdict for the defendant and reported the case.

The driveway was seven feet in.width, and so constructed that the grade to the street was somewhat greater than that of the land in its natural state; but, if it be assumed that the ice on which the plaintiff fell was caused by water which had flowed down the driveway, it was not shown that this water came down in greater amounts or different manner than might have occurred in the natural state of the land. “A landowner has a right to change the surface of his lot, or improve it by the construction of -buildings: or by .other means, in any lawful manner, and if the natural course of surface water is thereby altered no liability is imposed on him.” Field v. Gowdy, 199 Mass. 568, 570. The testimony of the plaintiff and the only other witness who saw the accident tended to prove that the ice on which she fell was so connected with ice over the short retaining wall at the side of the driveway near the sidewalk as to justify the inference that the water came from the surface adjoining the retaining wall. This retaining wall is so close to the boundary line of the defendant’s land that the evidence would not' justify a finding that the defendant had collected water on her land at this point and discharged it through an artificial channel upon the sidewalk.

Judgment for defendant on the verdict.