Fortin v. City of Gardner
Fortin v. City of Gardner
Opinion of the Court
Fortin brings this action to recover for injuries resulting from a fall on Main Street in Gardner on
Fortin was sixty-seven years old at the time of the accident. He was employed in Gardner. On the day of the accident he arrived by motor vehicle “in front of the J. B. Carbone store at approximately 6:45 a.m.” He “stopped there almost every morning.” That morning, as he had done in the past, he was to deliver papers to the store. “[A] congealed mass [of snow, ice, paper, oil, grease, and sand] had accumulated on the sides of Main Street” over a period of several weeks. “ [1ST] othing had been done to remove . . . this congealed mass until the day of the accident,” when, earlier that morning, a city employee “had been using a grader ... to break up the frozen mass . . . and had pushed . . . [it] into a pile or windrow . . . about three feet wide and two feet high tapering towards a point at the top, and . . . located in the street approximately two feet from the sidewalk.”
The Carbone store was in the center of a block about 225 feet long. “ [T]he grader made a continuous pile along Main Street.” This pile “was ... to be picked [up] by a loader.” The mass in front of this particular block “had been broken up and piled from one to two hours prior to . . . the accident.”
Fortin, as he entered Gardner that morning, had seen the continuous windrow approximately one quarter of a mile before he reached the Carbone store and had passed a grader not in use some distance from the store. Although there was evidence that a driveway had been cleared about 150 feet from the store, Fortin and another witness testified that they had not observed it.
Fortin stepped out of the motor vehicle the store.
“ [H]e saw no way of getting onto the sidewalk except over
An auditor, whose report (findings not final) was in evidence, found for the city. He had concluded that the city was not negligent in making the windrow, and that it did not constitute a defect in the street.
We assume that objects resting upon a way may constitute a defect under Gr. L. (Ter. Ed.) c. 84, § 15,
The congealed mass of ice, snow, and other materials which had existed for some time had been broken up and piled that very day. It was in the process of removal. The
General Laws c. 84, § 15, “does not require that a way shall be closed during construction or repair . . . [or] that other means shall be taken to warn the public against entering thereon, where such construction or repair is apparent to the public. Pratt v. Rockland, 294 Mass. 444, 447. See Pratt v. Peabody, 281 Mass. 437, 439-440. See also Norris v. Newton, 255 Mass. 325, 326-327 (temporarily open manhole, although guarded by a city employee, treated as a “transitory defect”); Mulvaney v. Worcester, 293 Mass. 32, 34 (steam roller left standing at edge of highway temporarily not a defect for which city liable unless the injury could have been prevented by reasonable care). Cf. Cragg v. Boston, 311 Mass. 547, 549 (jury could find sidewalk defect not apparent); Delgado v. Billerica, 323 Mass. 483, 485-486; Scholl v. New England Power Serv. Co. 340 Mass. 267, 270-271 (unguarded defect in a street crossing); Tosches v. Sherborn, 341 Mass. 360, 361-362 (where a question of fact existed whether the defect, there a newly tarred road, was so obvious that, as matter of law, it furnished a warning). In circumstances like those now presented, reasonably apparent snow removal operations come within the principle of Pratt v. Rockland, supra. Obstructions temporarily but reasonably created in the course of such operations in themselves do not give rise to liability under c. 84, § 15. We think that there is no evidence that these operations were not being conducted by the city in a proper manner, at a reasonable hour, and with due diligence. No evidence is set forth which is adequate to control the findings of the auditor. In breaking up and piling such a congealed mass
In the circumstances, no actionable defect existed. A verdict should have been directed for the city. The verdict is to be set aside. The entry must be
Judgment for the defendant.
Section 15 reads in part, “If a person sustains bodily injury ... by reason of a defect or a want of repair . . . in or upon a way, and such injury . . . might have been prevented, or such defect or want of repair . . . might have been remedied by reasonable care and diligence on the part of the . . . city . . ., he may, if such . . . city . . . had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair . . ., recover damages therefor from such . . . city . . .. ”
Section 17 reads, “A . . . city . . . shall not be liable for an injury or damage sustained upon a public way by reason of snow or ice thereon, if the place at which the injury or damage was sustained was at the time of the accident otherwise reasonably safe and convenient for travelers” (emphasis supplied).
Reference
- Full Case Name
- Arthur Fortin v. City of Gardner
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- 1 case
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- Published