Sharp v. Giesow

• Decision Date: 04 January 1929
• Citation: 265 Mass. 506
• Parties: ELIZABETH SHARP v. HARRY G. GIESOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 506

ELIZABETH SHARP v. HARRY G. GIESOW.

Supreme Judicial Court of Massachusetts, Bristol.

January 4, 1929

October 22, 1928.

Present: CROSBY PIERCE, CARROLL, WAIT, & SANDERSON, JJ.

Ice and Snow. Notice.

A finding, that the notice required by G.L.c. 84, Sections 18-21, had been given by the plaintiff in an action against an individual for personal injuries alleged to have been received in 1921 by reason of slipping on ice accumulated on a sidewalk as a result of an improper condition of premises of the defendant was not warranted upon evidence at the trial of the action showing merely that an attorney at law for the plaintiff sent to the defendant by registered letter "a notice of the accident, of the time and place, and extent of the injury . that it was probably four or five or six days after the accident that he sent this notice, within the ten days limit . . . that in the notice there is a statement of the time when the alleged injury occurred, the place where it occurred, and a brief statement of the cause of the alleged injury," and that, to the best of the attorney's recollection, he received a return card, which was not produced.

The provisions of Sections 18, 20, relating to inaccuracies or omissions in a notice, were not applicable in the circumstances above described.

TORT for personal injuries. Writ dated March 29, 1921. In the Superior Court the action was tried before Dillon, J. Material evidence is stated in the opinion. The jury found for the plaintiff in the sum of $2,500 and the judge, in accordance with leave reserved under G.L.c. 231, Section 111, ordered a verdict for the defendant. The plaintiff alleged exceptions.

D.R. Radovsky, (H.W. Radovsky with him,) for the plaintiff. H.F. Hathaway, (E.R. Hathaway with him,) for the defendant.

CROSBY, J. This is an action of tort to recover for personal injuries, received by the plaintiff on February 1, 1921, by reason of slipping upon an alleged unnatural accumulation of ice on a sidewalk on Elm Street, a public way in Fall River, in front of premises at that time owned by the defendant. The plaintiff contended that water from the roof of the house fell upon a passageway between the east side of the house and a stone wall; that this passageway was from eighteen to twenty-four inches in width and sloped toward the sidewalk; that water from the roof, and from a conductor attached to the house flowed over the passageway onto the sidewalk causing ice to form at the place where the accident occurred.

It is a condition precedent to maintain this action that notice was given as required by G.L.c. 84, Sections 18, 19, 20 and 21, in force at the time of the injury. These sections of the statute, so far as they relate to notice of injuries resulting from snow and ice, apply to actions against persons, founded upon the defective condition of their premises or of adjoining ways; and the person so injured shall, within ten days thereafter, give to the person by law obliged to keep said way in repair notice of the time, place and cause of the said injury. See St. 1922, c. 241, amending G.L.c. 84, Section 21.

The plaintiff called as a witness one Edwin N. Blinn, who testified on his direct examination that as attorney for the plaintiff he sent to the defendant by registered letter "a notice of the accident, of the time and place, and extent of the injury . that it was probably four or five or six days after the accident that he sent this notice, within the ten-days limit. . . ." On his cross-examination he testified "that in the notice there is a statement of the time when the alleged injury occurred, the place where it occurred, and a brief statement of the cause of the alleged injury." He further testified that to the best of his recollection he received a return card;...