Ferreira v. Gross

• Decision Date: 02 July 1948
• Citation: 80 N.E.2d 481,323 Mass. 175
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ANTHONY FERREIRA v. SAMUEL GROSS & another.

323 Mass. 175

80 N.E.2d 481

ANTHONY FERREIRA v. SAMUEL GROSS & another.

Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1948

May 5, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN SPALDING, & WILLIAMS, JJ.

Notice. Snow and Ice.

Nuisance. Way Public: nuisance.

Within G. L. (Ter Ed.) c. 84, Section 21, there was sufficient service of a written notice of injury upon one owning and controlling an apartment house occupied by several tenants where it appeared that the notice was addressed merely to "the owner owners, lessee, lessees, tenant, tenants, occupant, occupants, person, persons, or corporation in control of" the premises, that the notice was posted on the door at the entrance to the first floor, and that a copy of the notice was delivered, with a request that it be delivered to the landlord, to one who answered a knock on the door and said he was a tenant; it was not necessary to prove that the owner actually received the notice.

A finding that one owning and in control of a building abutting a sidewalk created a nuisance thereon was warranted by evidence that a bay window extended over the sidewalk, that at the top of the bay was a projecting roof having no gutter or conductor, and that water dripped from icicles hanging from the roof of the bay onto the sidewalk and froze in patches there.

TORT. Writ in the Superior Court dated December 11, 1942. The action was tried before Beaudreau, J.

S. H. Lewis, (W.

H. Gross with him,) for the defendants.

L. Karp, for the plaintiff.

SPALDING, J. This action of tort was brought to recover for injuries sustained by the plaintiff on January 28, 1941, when he fell on an alleged accumulation of ice on the sidewalk in front of premises owned by the defendants. There was a verdict for the plaintiff. The defendants' exception to the denial of their motion for a directed verdict raises these questions (1) whether the notice was sufficient and (2) whether the evidence warranted a finding that the plaintiff's injuries were caused by a nuisance maintained by the defendants.

1. The notice complied with the statute.

At the time of the accident the defendants owned and controlled a four-story apartment house at 148 Berkshire Street, Cambridge, which was occupied by eight tenants. On February 6, 1941 (nine days after the accident), the plaintiff's attorney posted a notice of the time, place and cause of the injury on the door at the entrance to the first floor. To a person who responded to a knock on the door and who said he was a tenant, the attorney delivered a copy of the notice with a request that it be delivered to the landlord. The attorney at that time did not know who owned the premises. One of the defendants testified that he first learned about the accident when he was served with a writ in December, 1942, one year and eleven months after the accident. The heading on the notice was as follows: "To the owner, owners, lessee, lessees, tenant, tenants, occupant, occupants, person, persons, or corporation in control of the premises, #148 Berkshire Street, Cambridge, Mass." That part of the notice relating to the time, place and cause of the injury and the name and residence of the person injured need not concern us, as the defendants concede that as to these matters the notice was sufficient. The sole question argued by the defendants is whether the giving of notice in the manner described above satisfied the statute.

General Laws (Ter Ed.) c. 84, Section 21, after stating that the three preceding sections (18, 19 and 20), so far as they relate to notices of injuries resulting from snow or ice, shall apply to "actions against persons founded upon the defective condition . . . of adjoining ways, when caused by or consisting in part of snow or ice," provides that "Such notice may be given by posting it in a conspicuous place on said premises and by leaving it with any person occupying the whole or any part of said premises, if there be such a person." The purpose of the quoted portions of Section 21 was to provide "a convenient way for the giving of notice where the landlord is unknown or if for any other reason it is difficult to deliver the notice." Tobin v. Taintor, 229 Mass. 174 , 176. It is not necessary that the person charged with the responsibility for the accident be named in the notice; it is enough if the notice sufficiently describes him. Blanchard v. Stone's Inc. 304 Mass. 634 , 638. Bychower v. United Cigar Stores Co. 253 Mass. 542 . Stefani v. Freshman, 232 Mass. 354 . Where notice is given under that part of the...