Dickie v. Boston & A. R. Co.
| Decision Date | 12 November 1881 |
| Citation | 131 Mass. 516 |
| Parties | Robert B. Dickie v. Boston and Albany Railroad Company. Helen E. Dickie v. Same |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Berkshire.
Judgment for the defendant.
F. W Rockwell, (A. J. Waterman with him,) for the plaintiffs.
T P Pingree & J. M. Barker, for the defendant.
These are actions of tort for injuries, occasioned to the respective plaintiffs by reason of an alleged defect in a bridge, which formed part of a highway in Pittsfield, upon which the plaintiffs were travelling. The railway of the defendant passed under the highway at this point, and no question is made that the defendant was authorized to construct and maintain this bridge.
By the provisions of the defendant's charter, and by the general laws of the Commonwealth, it is required to keep this bridge in repair. St. 1833, c. 116, § 13. St. 1867, c. 270, § 4. Rev. Sts. c. 39, § 72. Gen. Sts. c. 63, § 61. St. 1874, c. 372, § 95. The town of Pittsfield, therefore, was under no liability to keep that portion of this highway in repair which was occupied by the bridge, because other sufficient provision is made by law for its maintenance and repair. Gen. Sts. c. 44, §§ 1, 22, amended by the St. of 1877, c. 234, §§ 1-3. White v. Quincy, 97 Mass. 430, and cases cited. Wilson v. Boston, 117 Mass. 509. Rouse v. Somerville, 130 Mass. 361.
The defendant comes within the provisions of §§ 1-3, above recited, which enable any person who has received an injury through any defect or want of repair in or upon any highway, townway, causeway or bridge, and who has complied with the other requirements of the statute to recover damages therefor from the county, town, place, or "persons, by law obliged to keep" the same in repair. The word "persons" includes corporations, and applies to the defendant. Gen. Sts. c. 3, § 7, cl. 13. Otis Co. v. Ware, 8 Gray 509. Greene Foundation v. Boston, 12 Cush. 54, 59. United States v. Amedy, 11 Wheat. 392.
The defendant in the first action was, therefore, entitled to the notice provided in these sections. This has been held to be a condition precedent to the plaintiff's right to maintain any action for injuries received by reason of such defect. Gay v. Cambridge, 128 Mass. 387. Mitchell v. Worcester, 129 Mass. 525. The declaration fails to allege such notice, and as the fact of such notice is necessary to constitute a cause of action, the omission may be availed of by demurrer. Commonwealth v. Dracut, 8 Gray 455.
In the second action, the plaintiff amended her declaration, and alleged that she gave the required notice to the defendant in writing, and the notice given is attached to, and made part of, the amendment. But this notice does not state the cause of the injury; it is...
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...least not clarified this distinction. We clarify the confusion in these cases today. Much of it can be traced back to Dickie v. Boston & Albany R.R., 131 Mass. 516 (1881). There, we concluded that the statutes were applicable to a railroad corporation and not to the town where the railroad ......
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...which hold the plaintiff to a very great accuracy in stating how he was hurt. McDougall v. City of Boston, 134 Mass. 149; Dickie v. Railroad Co., 131 Mass. 516; Noonan v. City of Lawrence, 130 Mass. 161; White v. Town Stowe, 54 Vt. 510; Wieting v. Town of Millston, 77 Wis. 523, 46 N.W. 879.......
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...word ‘person’ in the phrase of the statute, ‘or person by law obliged to repair the same’, includes a corporation. Dickie v. Boston & Albany Railroad Co., 131 Mass. 516;Conary v. Boston & Maine Railroad, 252 Mass. 397, 147 N.E. 883;Mack v. Boston & Albany Railroad Co., 164 Mass. 393, 41 N.E......
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