209 Mass. 196 | Mass. | 1911
This case was before this court in 205 Mass. 431, where the defendant’s exceptions were sustained, and it was left to the Superior Court to decide whether the plaintiff should be allowed to amend his declaration by substituting for the count at common law on which the case was tried, counts under R. L. c. 106, § 71, the act which was in force at the time of the injury complained of. The Superior Court allowed the plaintiff to amend by substituting for the count at common law a count under R. L. c. 106, for negligent superintendence, and the case came on for trial on the declaration as thus amended. The presiding judge ruled, subject to the defendant’s objection and exception, that there was evidence of negligent superintendence, and by agreement of the parties submitted certain questions to the jury which they answered in favor of the plaintiff and assessed damages in the sum of $4,000. The presiding judge
We think that the ruling was right. The notice required by the statute is a condition precedent to a right of action. Any right of action which the plaintiff otherwise would have had is lost if he fails to give a sufficient notice. The notice required must be in writing, signed by the person injured or some one in his behalf, and must be given to the employer within sixty days, and must contain a statement of the time, place and cause of the injury. The notice relied on in this case, omitting the letterhead, is as follows:
“ November 5, 1907.
Stone & Webster Engineering Corporation,
No. 147 Milk Street,
Boston, Mass.
Gentlemen:
William F. Grebenstein, who was in your employ and was very greatly injured and will probably permanently lose his eyesight, while at work on electrical appliances of the Boston Elevated Railway at Sullivan Square, and is now in the Boston City Hospital, has placed his case in my hands for adjustment.
There seems to be no doubt about the liability and certainly the injury is very great. If you wish to confer with me regarding a settlement I would be glad to see or hear from you at once.
Tours very truly,
(Sgd) Howard D. Moore.”
The notices required by the statute are not, as was said in Driscoll v. Fall River, 163 Mass. 105, of notices under the highway statutes, “ to be construed with technical strictness, but enough should appear in them to show that they are intended as the basis of a claim against the city or town.” In Kenady v. Lawrence, 128 Mass. 318, it was said that “the notice itself should show . . . either by a form of words, or by the circumstances under which it is given, that it is intended by the party giving it as a notice for the purpose of fixing his right of action.” This was cited with approval in Lyman v. Hampshire, 138 Mass. 74, 77, and in Carroll v. New York, New Haven & Hartford Railroad, 182 Mass. 237, 241. In the present case the alleged notice begins with a
It is not necessary to consider whether the case was properly submitted to the jury on the question of liability.
Judgment on the verdict for the defendant.
Wait, J.