Nuisance, By reason of snow or ice. Ice and Snow. Landlord and Tenant. Where, in an action for personal injuries by reason of the alleged defective condition of the defendant's premises caused by snow and ice, there was no averment or proof that the plaintiff had given notice to the defendant of the time, place and cause of the injury within ten days as required by St. 1908, c. 305, but this conclusive defense appeared not to have been brought to the attention of the judge presiding at the trial, who had refused to order a verdict for the defendant, the case here was considered on other grounds, on which the defendant's exceptions were sustained.
A landlord is not liable to a tenant of an apartment in his building, and consequently is not liable to a guest of such tenant, for injuries from a fall caused by snow and ice on a granolithic walk in the court yard of the building leading to a public street, where it is not shown that the landlord had taken upon himself the duty of keeping the way clear of snow and ice, and it appears that the condition of the walk was due entirely to a combination of rain, snow and freezing weather, and was not due to any defect in the walk or in the building, or to the snow being trampled upon.
SHELDON, J.
There was neither averment nor proof that the plaintiff had given notice to the defendant of the time, place and cause of her injury. St. 1908, c. 305. This is fatal to the maintenance of her action. Baird v. Baptist Society, ante, 29. But as we doubt whether this point was brought to the attention of the judge at the trial, or was intended to be covered by the defendant's request that a verdict be ordered in his favor, we prefer not to decide the case upon that ground.
There was no evidence of the breach of any duty owed by the defendant to the plaintiff. The defect upon the walk on which she fell was due entirely to natural causes, the combination of rain and snow with freezing weather. He had made no agreement and there was nothing to show any duty on his part to guard against or to remedy such a condition. Nothing had been done to the sidewalk since the storm that was testified to. The snow and ice had not been alternately trampled upon and frozen as in Urquhart v. Smith Anthony Co. 192 Mass. 257, and any rough or hubbly condition that existed must be taken to have been due solely to the weather. There was no evidence of any custom or practice as to cleaning or sanding the walk, as there was in Nash v. Webber, 204 Mass. 419. The accumulation of ice and snow was not due to any defect in the walk itself or in the building.
There is nothing here to take the case out of the general rule that a landlord is not liable to his tenant (and the plaintiff has no greater rights than the tenant whose guest she was) for injuries caused by ice and snow in the manner here disclosed, unless it is shown, as it was not shown here, that he has taken upon himself the duty of keeping the way clear of ice and snow. Woods v. Naumkeag Steam Cotton Co. 134 Mass. 357. Watkins v. Goodall, 138 Mass. 533, 536. Nash v. Webber, 204 Mass. 419. Hawkes v. Broadwalk Shoe Co. 207 Mass. 117, 122.
The defendant's exceptions must be sustained; and following the plaintiff's stipulation, judgment must be entered for the defendant.
So ordered.
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