The instructions asked by the defendants were properly refused. A mass of ice upon a sidewalk may, from its size and shape, constitute an obstruction or defect in the way, although not caused by any fault or defect in the construction of the sidewalk. The second instruction assumed a fact upon which the jury were to pass; namely, that the plaintiff knew and saw the condition of the sidewalk, so that he was not in the exercise of due care in passing over it.
But in the instructions given, we understand the court to have in substance ruled, that the mere fact that the sidewalk was slippery with ice, if in the opinion of the jury it was thereby rendered unsafe or inconvenient for travellers, and if the ice had existed for twenty-four hours, would establish the existence of a defect in the way for which the city was responsible. This ruling, for reasons fully stated in the recent case of Stanton v. Springfield, we think cannot be supported. Exceptions sustained.
A similar decision was also made in the following case from Middlesex, argued in January 1867.