293 Mass. 238 | Mass. | 1936
The plaintiff’s declaration alleges “that •on or about the 18th day of January, 1930, he received severe personal injuries on account of the negligence of the defendant company, its agents and servants.” The case was tried in the Superior Court before a jury. A special question submitted to the jury asking whether written notice of the time, place and cause of the plaintiff’s injury was given by the plaintiff or his wife and received by the defendant was answered in the affirmative, and a verdict returned for the plaintiff. The trial judge reported the
The following facts were not in dispute. The plaintiff arrived at the Columbia station, one of the stations of the so called Dorchester-Cambridge Tunnel, at about 11:15 in the forenoon of January 18, 1930. He paid his fare, entered the station and then walked along the platform about fifty feet from the entrance toward the rear car of a four-car train which was standing on the east side of the platform waiting for passengers bound in town. When he was near the rear door of the rear car he slipped on ice on the platform and was injured. The Columbia station is not underground and has an open platform about twenty-three feet wide, where trains going in town stop on the east side and trains going in the- opposite direction on the west side. Trains stop there to receive and discharge passengers on either side every three and a half minutes. The platform was protected from the weather only by a roof which did not go beyond the edge of the platform. On the east of the station is Dorchester Bay which is a short distance away. At the time of the plaintiff’s accident it was raining and sleeting and the temperature was below the freezing point. The official weather report from the Boston Weather Bureau showed that it had been freezing or near freezing from seven o’clock that morning until noon, and that from eight to eleven the wind was southeast and after eleven it was east.
There was evidence introduced by the plaintiff which warranted the jury in finding the following additional facts. The plaintiff walked from the entrance in the center of the
The station was not the property of the defendant and it was not responsible for the method of its construction. The defendant admitted, however, that it was responsible for the reasonable care of the station. An inspector of the defendant, a part of whose duties it was to see that the station platforms were kept clean, was at the station in question on the day of the plaintiff’s accident from twenty-five minutes of ten o’clock until after ten. He testified that there was a formation of ice all along the edge of the platform, that the rain was coming in on that side of the platform, freezing as it fell, that he spread' sand along the edge of the platform but that the rain continuing to come on the platform froze over the sand. A porter of the defendant, whose place of work was at that station when the weather was stormy, testified that he came to the station that morning about twenty minutes after ten and spent half an hour sanding the easterly side of the platform.
It was the duty of the defendant to maintain its platform in a reasonably safe and suitable condition for its patrons- who were rightfully using it. Anjou v. Boston Elevated Railway, 208 Mass. 273. Fournier v. New York, New Haven & Hartford Railroad, 286 Mass. 7, 12. Ward v. Boston Terminal Co. 286 Mass. 517. On the evidence it could not here have been properly ruled as matter of law that the defendant performed this duty. The accident happened near the middle of the day. There was a formation of ice along the edge of the platform where passengers in boarding or leaving cars must of necessity go. It was
It could not rightly have been ruled as matter of law that the defendant had sustained the burden of proving contributory negligence on the part of the plaintiff. The fact that the plaintiff did not observe the dangerous condition of the platform did not in the circumstances appearing require the ruling of law that he was negligent. Frost v. McCarthy, 200 Mass. 445, 448. Rice v. Rosenberg, 266 Mass. 520, 524. Barnes v. Berkshire Street Railway, 281 Mass. 47, 50.
Such of the defendant’s requests for rulings on this branch of the case as have been argued need not be discussed in detail. They are disposed of by what has here been said.
Evidence introduced by the plaintiff tended to show that his injuries were caused by a defective condition . of premises within the defendant’s control, due to the presence of ice on the platform. The statutes make it a condition precedent to recovery in an action brought to recover damages for an injury caused by ice that a written notice of the time, place and cause of the injury be given to the defendant. G. L. (Ter. Ed.) c. 84, § 21. Miller v. Rosenthal, 258 Mass. 368. The giving of such a notice must be pleaded. Baird v. Baptist Society, 208 Mass. 29, 32. The original declaration filed by the plaintiff and his specifications filed by order of court contained no allegation
The sole question presented for decision to the trial judge in passing upon the plaintiff’s motion to amend his declaration was whether the proposed amendment enabled the plaintiff to maintain the action for the cause for which it
The denial of the defendant’s motion for a directed verdict was proper and there was no error in the refusal to grant any of the defendant’s requests for rulings and instructions. Under the stipulation judgment must be entered on the verdict.
So ordered.