
    Nathan Hutchins vs. City of Boston.
    Tout for injuries resulting from an alleged defect in a highway in Boston.
    At the new trial in this court, before Foster, J., after the decision reported 12 Allen, 571, the facts appearing substantially as hereafter stated, a verdict was returned for the defendants under a ruling of the judge that there was no evidence of a defect in the highway for which the city was liable; and the case was reported to the full court.
    On December 20,1864, the plaintiff, who was a teamster, was loading his sled with cases of shoes from the store of one Converse on Gridley Street in Boston. He had carried one or more cases from the store to the sled, across the sidewalk, and was carrying another, and exercising ordinary care, when, as he turned around, he slipped on a mass of ice, fell, and broke his leg. The sidewalk along that part of Gridley Street was about four feet wide, and the alleged defect, at the place where the accident occurred, consisted of a mass of ice extending from the curb-stone to the building, being about four inches high in the middle of the sidewalk and sloping each way, so that at the curb and at the building it was much thinner. It appeared that the sidewalk had not been cleared of snow or ice during the winter; that it sloped so that where it joined the wall of the building it was an inch and a half lower in level than it was midway between the curb and the building; that, during the three or four days preceding the accident, there had been snow, rain, hail and frost, and rain and hail on the day next preceding it; that the water from the eaves of the building fell, accumulated and froze on the narrow sidewalk, rendering the surface of the ice rounding and uneven; and that the condition of the sidewalk for the twenty-four hours prior to the accident had been substantially the same as at the time of the accident.
    
      
      L. Child, for the plaintiff.
    
      J. P. Heady, for the defendants,
    cited Stanton v. Springfield, 12 Allen, 566 ; Hutchins v. Boston, 12 Allen, 571; Nason v. Boston, 14 Allen,
   By the Court.

There was evidence at the trial that the sidewalk was not only slippery from ice, but also that the ice had been allowed to become uneven and rounded, so as to present a narrow surface from three to four inches higher m the centre of the strip of ice than at its sides. This evidence should have been submitted to the jury with instructions that the defendants would not be liable merely because there was ice on the sidewalk which was smooth and slippery, by reason whereof the plaintiff fell, but that the city could be held liable only in case the jury should find that, in addition to the smooth and slippery condition of the ice, it was allowed to be in such an uneven and rounded condition on the surface that a person could not walk over it, using due care, with out being in danger of falling down. New trial granted.  