262 Mass. 104 | Mass. | 1928
This is an action of tort to recover for personal injuries received in the forenoon of March 12, 1923, on Warren Street, near the corner of Savin Street, in that part of Boston known as Roxbury, by slipping on a ridge or hill of snow caused to be piled up by the defendant. In the notice given the defendant by the plaintiff’s attorney on March 27, the time and the place of the accident were stated, together with the fact that the plaintiff’s injuries were received by falling on a ridge of snow and ice. The notice also contained the statement that “Said ridge of snow and ice was caused to form and accumulate at said place by the negligent operation of a snowplow owned, operated and controlled by the defendant, its agents and servants.”
The evidence tended to show that the plaintiff walked
The plaintiff testified that she climbed over the bank of snow and walked a couple of feet and on the top of a hill slipped on a slope three feet high, falling near the track and striking her back on a piece of ice; that she was helped up and took the next car for Dorchester, and, after leaving that car, walked to her aunt’s house where she fainted. She later went home, the doctor was called and she remained in bed about two weeks and did not remember anything that happened until about two weeks after the accident; that during the time she was in bed she did not know where she was; that at the end of the two weeks the trouble cleared up and the details of the accident came back to her; and about that time she saw a lawyer at her house, and then for the first time told how the accident happened in detail. Other evidence tended to show that the plaintiff was in a dazed condition after the accident.
It is contended by the defendant that the plaintiff is barred from recovery because she failed to give the notice within the ten days required by G. L. c. 84, § 18. If it were true that this section of the statute is applicable to thé plaintiff’s case, still the testimony as to her mental and physical condition would make the question whether she was entitled to the extended period for the service of notice for which provision is made in G. L. c. 84, § 19, one of fact for the jury. The ten-day limitation on the time for service of the notice, required by G. L. c. 84, § 18, is now confined to cases of bodily injuries or property damage resulting from
A witness connected with the office of the commissioner of public works of the city of Boston, called by the defendant, testified in substance that Warren Street was not one of the streets from which the defendant was required to remove snow; that the witness understood that, if the defendant removed the snow from its tracks and threw it alongside its rails, the city would remove it; that he understood from a letter that the defendant would not be required to remove snow for the full width of the street, but would push it aside, and that the city of Boston, the public works department and the Boston Elevated Railway Company agree on the program of snow removal in town and certain of the main arteries like Warren Street; and that on certain streets the defendant is required to remove snow for the entire width. In G. L. c. 161, § 85, as amended by St. 1923, c. 482, § 3, authority is given certain designated public officials to make regulations for the clearance of snow from the tracks by street railway companies and for the removal of such snow from the streets. But the court could not rule upon this testimony that the defendant had no responsibility for removal of snow which it had accumulated in the street in the form of a sloping bank, as described by the witnesses, or that the defendant had violated no duty it owed the travelling public by reason of the way and manner in which it caused the snow to be piled along Warren Street. The testimony
The question whether the defendant had sustained the burden of proving that the plaintiff was not in the exercise of due care was for the jury. Thomas v. Western Union Telegraph Co. 100 Mass. 156,158. Mahoney v. Metropolitan Railroad, 104 Mass. 73. They could have found that the injury in this case was caused by negligence of the defendant in so heaping up snow in the street as to cause an artificial obstruction to travel and that this condition had continued to the knowledge of the defendant for a week or more. Seltzer v. Amesbury & Salisbury Gas Co. 188 Mass. 242, 244. McMahon v. Lynn & Boston Railroad, 191 Mass. 295. Miller v. Boston & Northern Street Railway, 197 Mass. 535. In Dixon v. Brooklyn City & Newtown Railroad, 100 N. Y. 170, it was held that a street railroad corporation has the right to remove snow from its tracks, but is bound to exercise reasonable care and diligence in so doing, and if it negligently causes such an accumulation upon the street as to produce an obstruction, rendering travel unsafe, it is liable for injuries caused thereby.
The declaration is broad enough to support a finding of negligence both on the ground that the defendant created a dangerous obstruction to travellers in the street, and on the ground that the obstruction had been allowed to remain in the street an unreasonable length of time. The bill of exceptions states that the alleged negligence'was in the operation or control of a snow plow and consisted of the way and manner in which the snow was piled along the street. The defendant contends that the plaintiff must fail in her action because she has not proved that the ridge of snow or ice upon which she fell was caused to form and accumulate by the negligent operation of a snow plow. It does not seem to have been disputed that the operation of the snow plows created the hill or pile of snow described in the testimony, and upon which the plaintiff received her injury, and the jury could have found that the creating of this obstruction
The plaintiff, subject to the defendant’s exception, introduced a certificate of the weather record of the city of Boston, signed by the meteorologist in charge of the weather bureau. This record purported to state for the day of the accident and for each of the six preceding days the maximum and minimum temperatures, the amount of snow fall, and the depth of snow on the ground at 8 p.m. The facts stated therein were not contradicted by any other evidence, and the statements as to the amount of snow fall were not materially different from the testimony of witnesses on the same subject. The defendant has not suggested how this evidence could have injuriously affected its substantial rights, and no prejudicial error is shown by its admission. G. L. c. 231, § 132.
Exceptions overruled.