The plaintiff, on February 5, 1942, was hurt in a fall on ice on the sidewalk on Anawan Street near the corner of Union Street, Fall River, and brings these two actions of tort, one against the lessees (hereinafter called the Mannings) of a portion of a .building adjacent to the *396 sidewalk and the other against the bank, the owner. There were verdicts for the plaintiff. Near the point of fall there was a doorway leading to a ramp which was included in the premises leased by the bank to the Mannings under a written instrument dated May 28, 1937. Above the doorway on thé outside wall of the second floor of the building adjacent to premises of which one Cherry and Webb Company was the occupant, there was a bell which was part of a sprinkler system for the prevention of fire.
In answer to special questions the jury found that (1) the ice upon which the plaintiff fell was caused to form by water flowing from a defective sprinkler bell, or that part of the sprinkler system to which the bell was attached, and freezing upon the sidewalk as the result of natural causes; (2) the bank retained control of the sprinkler system, including the bell; (3) the defective condition of the bell or the sprinkler system existed as a result (a) of the negligence of the bank but (b) not of the Mannings; and (4) the snow or ice accumulated as the result of the neglect of the Mannings in not removing it.
The defendants excepted to the denial of their motions for directed verdicts and of their motions to enter verdicts in their favor under leave reserved. There was evidence that the ice, which was concealed by a recent light fall of snow, had remained there for two or three days; that it was the only ice in the vicinity and extended from a point directly below the fire alarm bell across the sidewalk to the curbstone; that on two previous occasions water had leaked from the sprinkler system into the bell, thence down the side of the building and across the sidewalk; and that both defendants knew or ought to have known of these leaks, which later were ascertained to be due to a defective valve in back of the bell which allowed water to escape.
Apart from questions arising out of an agreement on the part of some tenant to keep the sidewalk free from ice thus caused, the bank would be liable. It owned the building, and the leaking sprinkler system was, or could have been found to be, a source of danger to travellers upon the high
*397
way.
Cavanagh
v.
Block,
■ The lease from the bank to the Mannings contained the following: “Said lessees . . . will save the lessor harmless from all loss and damage occasioned by the use or escape of water upon said premises or by the bursting of pipes or from any claim or damage arising from neglect in not removing snow and ice from the roof of the building or from the sidewalks bordering upon the premises so leased, or by any nuisance made or suffered to be made by the lessees on the premises over which they have control, or which is within their ability and power to prevent and eliminate . . .; and will hold the lessor harmless and indemnified against any injury, loss or damage to any person or property on said premises.” The Mannings would be liable if the plaintiff’s injuries were caused by neglect to perform their obligations under the lease.
Wixon
v.
Bruce,
There was ample evidence from which the bank could have been found to have retained such control.
Marston
v.
Phipps,
Enough has been said to show that there was no error in the denial of the bank’s requests for instructions numbered 5 and 6, which were at variance with the principles herein expressed as to the retention of control by the bank. The same is true of the exception to that part of the charge in which the judge said that if the jury found that the bank retained control of the sprinkler system, it was conceivable that they might find for the plaintiff against the bank. The exception to the portion of the charge relating to the third question submitted to the jury does not merit discussion.
There likewise was no error in the denial of the bank’s motions or in the refusal of its requests for instructions numbered 2, 10, and 11, which were based upon a supposed exoneration of the bank in the covenants by the Mannings in the lease.
We are confirmed in this conclusion by a consideration of those covenants. The Mannings contend, and we think rightly, that the indemnity provision should not be construed to cover the removal from the sidewalk of ice form-ihg as the result of the bank’s negligence. In
Boston & Maine Railroad
v.
T. Stuart & Son Co.
The verdict against the Mannings was based entirely on neglect to remove the ice, which formed entirely because of the negligence of the bank. There was no other evidence of negligence on their part. We are of opinion that the motions for a verdict in their favor should have been granted.
The bank also excepted to the following portion of the charge: “Something was said about a water pipe bursting in the basement of the property occupied by Manning and being repaired by Mr. Clark; and the bank paid the bill, it was said, because it serviced the entire building. You have a right to consider that evidence. You have a right to consider the fact that when the fire underwriters came there in the summer preceding this accident and required the renewing of sprinkler heads in order to conform with the conditions of the fire insurance policies on the building . . . Mr. Clark went down and did that and sent the bill to the bank.” There was no error. In the first place, the evidence referred to, having been admitted without objection, was in the cases for whatever effect it might have to prove any matter in issue.
Jackson
v.
Colonial Provision Co. Inc.
314
*400
Mass. 177, 179-180.
Ventromile
v.
Malden Electric Co.
The bank’s eighth request relating to the burden of proof was given in substance.
There is no merit in the bank’s exception to the admission in evidence of the notice
1
given to the bank under G. L. (Ter. Ed.) c. 84, §§ 18, 19, as amended, and § 21. The notice gave the plaintiff’s name and address with street and number and the time, place, and cause of her injury. It was signed on her behalf by her attorneys, and was given five days after the accident. Its substance was a sufficient compliance with the statute to lay a foundation for her claim. It was not necessary that the notice contain a claim of damages or threat of action.
Goff
v.
Hickson,
During the cross-examination by counsel for the Man- *401 nings of one Clark, called as a witness by the plaintiff, the witness testified without objection that he knew that the pipes connecting the bell with the sprinkler system were disconnected after the accident at his direction. The witness was then asked, “You did it as the maintenance agent for the bank? ” Subject to the bank’s exception, he answered, “Yes.” In any event, the bank was not harmed by this answer, as full details of Clark’s employment appeared in other testimony both by him and by a vice-president of the bank in charge of its real estate. The substantial rights of the bank were not affected. G. L. (Ter. Ed.) c. 231, § 132.
In the action against the Mannings the exceptions are sustained, and judgment is to be entered for the defendants. In the action against Citizens Savings Bank the exceptions are overruled.
So ordered.
Notes
The body, of the notice, which was dated February 10, 1942, and addressed to the bank, was as follows: “Due to the defective condition of the premises at 338 Anawan Street, Fall River, Bridget Laskowski, 7 Washington Street, Fall River, was seriously injured on February 5, 1942, at approximately 9:45 a.m. The said injury was caused by the accumulation of ice on the sidewalk in front of said 338 Anawan Street and said ice accumulated due to water leaking from a bell attached to said building and which bell was in a defective condition.”