Dacey v. San-Vel Contracting Co.

11 Mass. App. Div. 71

This text of 11 Mass. App. Div. 71 (Dacey v. San-Vel Contracting Co.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dacey v. San-Vel Contracting Co., 11 Mass. App. Div. 71 (Mass. Ct. App. 1946).

Opinion

Pettingell, P. J.

Action of tort to recover for property damage, the plaintiff’s motor vehicle, having skidded on ice on the road alleged to have been caused by water dripping from defendant’s trucks and freezing. The defendant’s answer is a general denial and contributory negligence.

The trial judge found that the defendant was engaged in an extensive sand and gravel business situate on both sides of Route 2, a heavily travelled arterial highway running through the towns of Littleton and Ayer. On the north side of the highway the defendant excavated sand and gravel which, by way of an under ground passage, crossing Route [72]*722, it hauled to a washing plant on the south side of the highway where, after it was washed, it was placed in a stock pile near a private way on defendant’s land, the private way having two outlets on Route 2, one westerly and one easterly, of the washing plant. When sand or gravel was being trucked after having been washed, water would drip from the trucks and, when the weather was cold enougli, would freeze on the road/ At the time of the accident in question the plaintiff’s truck ran on a patch of ice which the trial judge found was caused by the defendant’s negligence, struck a tree and was substantially damaged, the trial judge finding that the plaintiff was in the exercise of due care. He found, however, that the plaintiff could not recover because he had given no notice as required by section 21 of Chapter 84 of the General Laws (Ter. Ed.)

The plaintiff filed six requests for rulings all of which were given except the fifth, which was: “5. The evidence warrants a finding for the plaintiff.”

The defendant filed two requests for rulings, each of which was given. These are: “1. Giving- notice to the defendant under the provisions of G. L. C. 84 S. 21 is a condition precedent to recovery in this action. 2. The evidence does not warrant a finding that notice was given the defendant in accordance with G. L. C. 84 S. 21.”

There was a finding for the defendant.

G. L. (Ter. Ed) section 21 is as follows:

‘ ‘ 21. NOTICE TO OWNER OF PRIVATE PROPERTY. — The three preceding sections, so far as they relate to notices or 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, and that if by reason of physical or mental incapacity it is impossible [73]*73for the injured person to give the notice within thirty days after the injury, he may give it within thirty days after such incapacity has been removed, and in case of his death without having been for thirty days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give the notice within thirty days after his appointment. 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 the said premises, if there be such a person, and no such notice shall be invalid by reason of any inaccuracy or misstatement in respect to the owner’s name if it appears that such error was made in good faith and did not prevent or unreasonably delay the owner from receiving actual notice of the injury and of the contention that it occurred from the defective condition of his premises or of a way adjoining the same. ’ ’

The sole issue in the case is whether under the provisions of Q-. L. (Ter. Ed.) e. 84, section 21, a notice by the plaintiff to the defendant was required. If a notice of the ldnd prescribed by C. 84, sections 18, 19, and 20, was required to be given within thirty days after the injury, was not given and not pleaded in the plaintiff’s declaration, the plaintiff cannot recover. Baird v. Baptist Society, 208 Mass. 29, at 32. Klein v. Boston Elevated Railway Co., 293 Mass. 238, at 241.

The opening words of Section 21 are “NOTICE TO OWNER OF PRIVATE PROPERTY”, and the section then goes on to state that it applies “to actions against persons founded upon the defective condition of their premises, or of adjoining ways, when caused by or consisting of snow or ice.”

We are aware of no case which has decided what the words “of adjoining ways,” means, but in De Prizio v. F. W. Woolworth Co., 291 Mass. 143, at 146, the Supreme Ju[74]*74dicial ¡Court discusses this situation among other features of the section, as follows:

“There are many cases where the statute has been held applicable to defective conditions existing upon land of an owner abutting on a public way and upon the outside portions of structures thereon. The statute applies to defective conditions existing on areas which are provided for persons to walk upon, such as walks leading from a building to the street. O’Donoughe v. Moore, 208 Mass. 473, and outside stairways and platforms, Paszowski v. Stoney Brook Paper Co., 210 Mass. 86; Erickson v. Buckley, 230 Mass. 467; Urban v. Simes, 259 Mass. 336, but it is not limited to defective conditions located in areas used for foot travel. Within the compass of the statute there is a defective condition on the roof of a building if snow or ice collects which later falls and strikes a passerby. Baird v. Baptist Society, 208 Mass. 29. Tobin v. Taintor, 229 Mass. 174, O’Neil v. Squire, 230 Mass. 294. See also Wood v. Oxford, 290 Mass. 388.”

The Court then went on to decide that the statute applies to cases of snow and ice within a building.

Furthermore, at page 147, there is this language.

“The statute deals with snow and ice. It covers both land and building's. It imposes no limitations upon the cause of the presence of the snow or ice. The natural implication is that it applies to all snow and ice made the basis of action, whether inside or outside the building and whether of natural or artificial origin.”

De Prizio v. F. W. Woolworth Co., supra, also calls attention to one point which is important in considering the nature and interpretation of the statute. The court says, at page 145,

‘ ‘ The statute did not create a liability on the part of an owner of real estate for a defective condition existing thereon; that liability rests on common law principles. It manifestly puts a limitation on the com[75]*75mon law right of a person injured through a defective condition consisting in part of snow or ice and existing on some portions at least of an owner’s real estate.”

■ The court does not say so, but the statement it makes logically applies also to defective conditions for which an owner is responsible in a way adjoining his premises. In Baird v. Baptist Society, 208 Mass. 29, at pages 31 and 32 the court said:

“At the time of the passage of this statute (St. 1908, c. 305, now G-. L. (Ter. Ed.) c. 84, section 21) 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.

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11 Mass. App. Div. 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dacey-v-san-vel-contracting-co-massdistctapp-1946.