Schneider v. Boston Elevated Ry. Co.
| Decision Date | 21 May 1927 |
| Citation | 156 N.E. 734,259 Mass. 564 |
| Parties | SCHNEIDER v. BOSTON ELEVATED RY. CO., and three other cases. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; C. H. Donahue, Judge.
Actions of tort by Joe Schneider and by Jacob Bovarnick against the Boston Elevated Railway, and separate actions of tort by the same plaintiffs against the City of Boston, to recover for personal injuries from a defective condition in the highway. Actions tried together. Verdict was directed the defendant in each case, and plaintiffs except. Exceptions overruled.
W. P. Higgins, of Boston, for plaintiffs.
J. A. Campbell, Asst. Corp. Counsel, of Boston, for defendant city of Boston.
A. E. Pinanski, of Boston, for defendant Boston Elevated Ry. Co.
These four actions of tort were brought to recover damages for injuries alleged to have been sustained on June 7, 1920, by reason of a defective condition of the highway. In each case the judge directed a verdict for the defendant, subject to the plaintiff's exception.
[1] There was evidence that a hole in the street caused a truck owned by the Paine Furniture Company to turn a short distance out of its course and strike a truck driven by one of the plaintiffs, which then collided with a truck it was towing, and in which the other plaintiff was seated. The evidence tended to prove that for two or three weeks previous to the time of the accident there had been a depression in the highway near the inbound rails of the defendant railway company from 2 to 2 1/2 inches deep, 2 feet long and 1 foot across. The oral evidence and the photographs introduced demonstrated that the depression in the street into which the wheel of the first truck went was not between the rails over which the cars of the street railway pass. The obligation imposed upon street railway companies (P. S. c. 113, §§ 32. 33), to keep in repair the portion of the surface of the highway ‘occupied by its tracks' on paved streets, was in force at the time of this accident as to the Boston Elevated Railway Company, by reason of R. L. c. 112, § 1, and St. 1906, c. 463, part III, § 2 (now G. L. c. 161, § 2). It was decided in Boston v. Boston Elevated Railway, 186 Mass. 274, 71 N. E. 295, that the phrase ‘occupied by its tracks,’ means ‘the rails and the space between them on and over which the cars pass.’ Upon the testimony, considered in the view most favorable to the plaintiffs, the jury would not have been justified in finding that the plaintiffs' injuries were caused by a defective condition in the part of the street for which the street railway company was liable. See Boudreau v. Springfield (Mass.) 153 N. E. 264. Other contentions made in behalf of that company need not be considered.
[2]G. L. c. 84, § 18, requires the person seeking damages for an injury caused by a defect in a way to give notice of the time, place, and cause of the injury within 30 days to the county, city, town or person by law required to keep the same in repair. In the case of a city, service of notice must be made on the mayor, city clerk or treasurer. O'Connell v. Cambridge (Mass.) 154 N. E. 760. It has been held that ‘notice to a person, particularly notice to a person at a specified place, is not given until it reached the person named at the place specified.’ McCord v. Masonic Casualty Co., 201 Mass. 473, 475, 88 N. E. 6, 7. When a plaintiff is required to prove that he gave notice of a claim for damages to a particular person within a specified time and relies upon the mail for its delivery, he must offer evidence that such a notice was prepared and properly addressed and mailed, postage prepaid, in time to reach the person in the regular course of mail within the time. See Huntley v. Whittier, 105 Mass. 391, 392,7 Am. Rep. 536;Marston v. Bigelow, 150 Mass. 45, 53, 22 N. E. 71,5 L. R. A. 43;Tobin v. Taintor, 229 Mass. 174, 176, 118 N. E. 247;Massachusetts Biographical Society v. Howard, 234 Mass. 483, 125 N. E. 605;Prudential Trust Co. v. Hayes, 247 Mass. 311, 313, 142 N. E. 73;Commonwealth v. Orler, 252 Mass. 55, 147 N. E. 548.
[3] A...
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Lechoslaw v. Bank of America, N.A.
...and properly addressed (with postage prepaid). See, e.g., Huntley v. Whittier, 105 Mass. 391, 392 (1870); Schneider v. Boston Elevated Ry. Co., 259 Mass. 564, 566, 156 N.E. 734 (1927); Commonwealth v. Barboza, 68 Mass.App.Ct. 180, 185, 861 N.E.2d 37 (2007). To make that showing, plaintiff s......
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Sweeney v. Morey & Co.
...exceptions, Thorndike, Petitioner, 270 Mass. 334, 170 N. E. 67, or the giving of notice of personal injuries, Schneider v. Boston Elevated R. Co., 259 Mass. 564, 566, 156 N. E. 734, or the giving of notices according to stipulations in contracts, McCord v. Masonic Casualty Co., 201 Mass. 47......
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Hobart-Farrell Plumbing & Heating Co. v. Klayman
...that the statement was received by the town clerk. The mailing of a letter properly addressed and postpaid (Schneider v. Boston Elevated Railway Co., 259 Mass. 564, 566, 156 N.E. 734), does not merely create a presumption (Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229;New ......
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Regan v. Atlantic Ref. Co.
...in the mail is evidence of notice, but is not of itself notice. O'Neil v. Boston, 257 Mass. 414, 153 N.E. 884;Schneider v. Boston Elevated Railway, 259 Mass. 564, 566, 156 N.E. 734;In re Thorndike, 270 Mass. 334, 170 N.E. 67;Sweeney v. Morey & Co., Inc., 279 Mass. 495, 499, 500, 181 N.E. 78......