Baird v. Baptist Society

94 N.E. 296, 208 Mass. 29, 1911 Mass. LEXIS 753

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1911
• Status: Published

Opinion

Hammond, J.

The question is whether St. 1908, c. 305, applies to the case stated in the plaintiff’s declaration.

At the time of the passage of this statute there were two kinds of liability for damages suffered by a traveller through a defect in a public way, the one created by statute, the other existing at common law. The first was imposed upon only such parties as were charged by law with the duty of keeping the ways in proper condition, and was based upon a neglect to perform that duty. The second rested upon parties by whose acts, positive or negligent, a defect was created in the way. One of the conditions of the statutory liability was that within a certain prescribed time after the injury there should be given to the person sought to be charged a notice of the time, place and cause of action. Pub. Sts. c. 52, § 19. This notice is not a mere step in enforcing a cause of action, but is a condition precedent to its existence, or in other words is one of its essential elements. Gay v. Cambridge, 128 Mass. 387. No such notice was required, however, in the case of the common law liability.

It may be contended that, so far as respects the defective condition of the premises, the statute under consideration applies only to such defects on private premises as render insecure the footing of the traveller thereon. But we think that is too narrow a construction. It is to be observed that this statute is not an amendment to It. L. c. 51, § 20. It has no relation whatever to the statutory liability imposed by that chapter. So far as respects public streets it refers only to the common law liability for the creation of a nuisance therein, and gives to those liable at common law for defect in a public way the same right to notice as that to which theretofore those upon whom rested the statutory liability were entitled.

But the statute does not stop with public streets, nor does it by express language name streets at all except “ an adjoining way.” It goes farther and declares that the notice shall be given in cases where there is a defective condition of the premises. Now, the common law liability for a defect in the premises is not confined to cases where the defect is in a private way, but may extend to any defect whereby employee, visitor, or stranger may be injured. 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. Whether the defect be in a private way or on some other part of the premises, the reason for the notice is equally applicable. In view of the comprehensiveness of the language of the statute and the manifest purpose of its enactment, it must be held that its scope is not limited to defects in ways, public or private, for which a person or corporation may be answerable at common law, but extends to any defect upon the premises whether or not it be in a way.

E. L. c. 51, § 20, provides that the notice shall be given within ten days after the injury, if the defect consists “ in part of snow or ice, or both.” It is plain from the allegations of the declaration that the defective condition of the defendant’s building to which the injury to the plaintiff’s daughter was attributable consisted in part of the snow and ice then being upon the roof, and in part of the lack of proper safeguards to prevent the snow and ice from falling. The defect consisted in part of snow and ice, and the statute is applicable. There is in the declaration no averment that notice was given. The demurrer was therefore rightly sustained.

Judgment for the defendant.