Urban v. Simes

• Decision Date: 20 May 1927
• Citation: 156 N.E. 697,259 Mass. 336
• Parties: URBAN v. SIMES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 336

156 N.E. 697

URBAN

v.SIMES.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1927.

Exceptions from Superior Court, Suffolk County; William A. Burns, Judge.

Action of tort by Elizabeth Urban against Louis Simes to recover for injuries from slipping on snow and ice on the steps of common entrance to a six-family dwelling house. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment entered for defendant.

B. J. Killion, of Boston, for plaintiff.

E. B. Goldberg, of Boston, for defendant.

RUGG, C. J.

This is an action of tort wherein the plaintiff seeks to recover compensation for personal injuries received by her on the tenth of March, 1923, by reason of slipping upon an alleged unnatural accumulation of snow and ice upon the rear steps of the common entrance to a six-family dwelling house, in one tenement of which the plaintiff lived. The foundation of the plaintiff's case is that, as she was leaving the rear door of the house, she received injuries by slipping on ice or snow or both on the concrete steps leading from that door, which there accumulated (as alleged) by reason of the defendant's negligence as owner of the house in failing to keep in repair and open a pipe for drawing the water from the roof, whereby water overflowed from the roof to the steps.

There was evidence tending to show that within thirty days after the injury written notice in an envelope was handed to a Mrs. Griffin, a tenant in the same house, that she did not read the outside or the contents, but later at a time not stated ‘gave it to Mr. Joy who did janitor work.’ Joy testified that he did janitor work for the defendant at the house in question and elsewhere for others, ‘that he knew Mrs. Griffin, and did not remember her giving him any envelope.’ There was no evidence that any notice ever reached the defendant, nor that any notice reached the janitor within thirty days after the injury. The case at bar in this respect differs from Haverty v. Ernst, 232 Mass. 543, 122 N. E. 727. So far as the notice is concerned, the plaintiff's case rests upon service on one of the tenants in a six tenement house.

It is a condition precedent to the right to maintain this action that notice was given as required by St. 1922, c. 241 (in force at the time of the injury to the plaintiff), amending G. L. c. 84, § 21. Rankin v. Wordell & McGuire Co., 254 Mass. 109, 149 N. E. 609. By that statute it is provided that sections 18, 19 and 20 of chapter 84, G. L., ‘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 their premises, or of adjoining ways, when caused by or consisting in part of snow or ice; provided, that notice within thirty days after the injury shall be sufficient. * * * Such notice may be given by leaving it with the occupant of said premises, or, if there is no occupant, by posting it in a conspicuous place thereon. * * *’ The original statute of this nature was St. 1908, c. 305, which did not differ in any material particular, so far as concerns the questions raised in the case at bar, from the present statute.

The manifest purpose of any statute of this nature, requiring a preliminary notice to the person against whom it is sought to establish liability, is that the information contained in such notice shall seasonably reach such person. The decisions hitherto rendered show that this statute is no exception to that general design. It was said by Hammond, J., in Baird v. Baptist Society, 208 Mass. 29, 32, 94 N. E. 296, 297, where St. 1908, c. 305, first was before the court for interpretation:

‘In our climate defects so far as caused by ice or snow may be very transient; and the manifest purpose of this and similar statutes is to give to the person charged with neglect prompt notice, so that he may have a reasonable chance to examine into the cause of complaint and collect evidence of the facts.’

In Sweet v. Pecker, 223 Mass. 286, 111 N. E. 908, both the owner and the lessee, who had exclusive control of the premises, were made defendants. Notice was served on the owner. The plaintiff having discontinued against the owner, it was held that the action could not be maintained against the lessee without proof of notice to him, and that leaving...