Nuisance. Snow and Ice. Municipal Corporations, By-laws and ordinances. If the owner of a two apartment house in a city, the apartments in which are let to tenants at will, the owner retaining control of the outside of the building including the roof and gutters, suffers a gutter to get out of repair so that water runs from it upon a public sidewalk and freezes, such owner is liable to a traveller upon the sidewalk who, while exercising due care, falls upon the ice and is injured, although "the duty of caring for snow and ice on the sidewalk, by the ordinances of the city, . . . rested upon the tenants or occupants of the premises, if there were any," and although one of the tenants had placed sand and ashes upon the ice which children in their play had brushed off.
HAMMOND, J.
There was evidence of the due care of the plaintiff. As to the negligence of the defendant, the evidence properly warranted findings by the jury that, although the defendant had let different parts of the building to different tenants at will, he nevertheless retained control of the outside of the building, including the roof and the gutters, and that upon him rested the responsibility as to repairs; that the gutter was negligently suffered by the defendant to be out of repair, so that the water flowed upon the sidewalk of a public street and there freezing rendered the walk dangerous to public travel and a nuisance; that the defendant knew or ought to have known this and that the plaintiff, while travelling thereon, was injured thereby. This makes a case for the plaintiff. Marston v. Phipps, 209 Mass. 552, and cases cited. And this would be so even if the acts of children contributed to the nuisance. Field v. Gowdy, 199 Mass. 568, and cases cited.
Exceptions overruled.