In the first action, in the absence of the defendant from the Commonwealth, a statutory notice of the accident was left at the business office of the defendant with his sistеr and managing clerk, who was authorized to receive legal notices, within the limitation of time for the service of such a notice prescribed by St. 1913, c. 324. The sister immediately sent notice of the accident to the defendant, who received it within ten days of the accident and thereupon wrote the plaintiff on March 16, 1916, “I learned a few days ago of your accident, and I wish to assure you of my sympathy in these trying days or weeks. I trust you are being cared for by skilled physicians, and that you have every reason to expect a speedy and perfect recovery.” We are of opinion the jury would also be warranted in finding from the letter of the defendant tо the plaintiff that the defendant received from the sister the notice itself. Tobin v. Taintor,
Upon the merits these actions were tried and went to the jury "solely upon the contention maintained by the plaintiff and disputed by the defendant that the accidеnt was due to the negligence of the defendant’s servants and agents in failing
We are of opinion the evidence offered by the plaintiff was ample to warrant a finding that the defendant had taken upon himself the duty of taking care of the platform and stairs and of clearing ice and snow therefrom; that ice had formed upon the edge of the platform and stairs during the day preceding the plaintiff’s accident and that the janitor, whose duty it was to keep the sidewalk clear of snow and ice, negligently failed to notice the ice or to do anything to remedy the slipperiness of the steps and plаtform. Nash v. Webber,
The plaintiff’s declaration is in two counts. The first count does nоt allege the giving of a notice or make claim of a defect due solely to snow and ice, but alleges a defect in the platform and stairs. It follows that there was a variance between the allegation and proof. It appears from the certificate of the presiding judge, and from the charge, that the only issue tried was that contained in the second count. It therefore appears that the merits of the case have been tried fully and that no harm came to the dеfendant by the refusal to order a verdict on the first count.
In the second action, assuming that the wife had a cause of action and that damage and injury to the plаintiff resulted therefrom, the question presented is whether the plaintiff by St. 1908, c. 305, as amended by St. 1913, c. 324, was required to give notice of the time, place and cause of the injury or damage in the manner provided in R. L. c. 51, §§ 20, 21, 22, so far as these sections relate to' injuries resulting from snow and ice. Baird v. Baptist Society,
The common law right of the plaintiff to recover for thе expense to which he had been put by reason of the injury to the wife resulting from the negligence of the defendant, is indisputable. Kelley v. New York, New Haven, & Hartford Railroad, 168 Mass.
Under the employers’ liability act, R. L. c. 106, and under the workmen’s compensation act, St: 1911, c. 751, the common law right of a third person to recover for injuries sustained by him аs a consequence of harm and injury coming upon another through the negligence of the defendant, is not barred by the neglect or refusal of that person to give notices which are conditions precedent to any right of recovery by that person, by a release or by a refusal to prosecute, for the reasоn that the rights of third persons are not included in the terms of the act. Jordan v. New England Structural Co.
St. 1908, c. 305, as amended by St. 1913, c. 324, provides: "The provisions of sections twenty, twenty-one and twenty-two of chaрter fifty-one of the Revised Laws, in so far as they relate to notices of injuries resulting from snow or ice, shall apply to actions against persons or corpоrations founded upon the defective condition of the premises of such persons or corporations, or of an adjoining way, whenever such defective condition is caused by,
On the other hаnd, the right to recover for injuries resulting from a defective condition of premises caused by snow and ice is a common law right and embraces all injuries to persons or property direct or consequential, resulting from the negligent observance of a duty imposed on the owner of the premises through an express or impliеd obligation. The provision of St. 1908, c. 305, as amended, that notice shall be given in ''actions” imports that notice shall be given in all kinds of actions which any person at cоmmon law has “against persons or corporations founded upon the defective condition of the premises . . . whenever such defective condition is caused by, or consists in part of, snow or ice.” Baird v. Baptist Society, supra. McNamara v. Boston & Maine Railroad, supra. So construed the notice required to be given as a condition precedent to the right to maintain an action must appear to have been “given on behalf of the person who brings the suit,” Driscoll v. Fall River,
The notices of Mrs. Erickson cannot be hеld to have been given on behalf of any other person injured, because such inference is excluded by the statement therein “that Mrs. Erickson proposes to hоld you liable in damages for her said injuries. This notice is given at her request and in her behalf. By her attorneys. . . .” The express limitation of the notice to the claim of Mrs. Erickson distinguishes the case at bar from Merrill v. Paige,
It may be noted that under similar statutory provisions a separate notice by the husband was held to be necessary in an
In the first action, upon the allowance of an amendment to the first cоunt to the effect that the accident was due in whole or in part to snow and ice and that due notice thereof was given to the defendant, the exceptiоns are overruled.
In the second action a verdict should have been directed for the defendant; and the exception .to the refusal so to do must be sustained and judgment be entered for the defendant. St. 1909, c. 236.
So ordered.