281 Mass. 447 | Mass. | 1933
This is an action to recover for personal injuries received by the plaintiff while a passenger upon a transatlantic ship operated by the defendant. The declaration contains three counts. The first and second are in contract and were waived. The third is a count alleging in substance due care of the plaintiff and negligence of the defendant, its servants or agents.
The plaintiff was injured by falling down stairs on the steamship "Samaria” on August 8, 1925. She testified that after she fell she was taken to the ship’s hospital, and in reply to questions put to her by the ship’s surgeon related when and how the accident happened. She told him that "she had pitched down the staircase by reason of a puddle of water at the top thereof left there by members of the crew who had washed the upper deck and which was there without her knowledge, that she had not been warned by anybody of its presence and that she intended to take the matter to court.” After her arrival in Ireland she wrote two letters to the defendant, the first being received by the company before August 28, 1925, in which she referred to her accident on August 8, and to the doctor’s "carelessness” in treating her. She also complained of lack of attention to the comforts of third class passengers, and asked if her return passage to the United States could not be changed from third to second class. This action is brought to recover not for alleged negligence of the doctor but for alleged negligence in maintaining the premises in an unsafe condition. The plaintiff testified that she sent another letter to the defendant in reply to the latter’s letter of August 28, 1925, in which she stated "that she had not refused attention, but had refused dope; that was about all there was in this letter.”
The contract of carriage provided So far as material as
We are of opinion that the provision for written notice of the claim to be delivered to the company within forty days after debarkation of the passenger is reasonable and binding upon the plaintiff. It was a condition precedent to the right to maintain the action. Henderson v. Canadian Pacific Railway, 258 Mass. 372, and cases cited. Gooch v. Oregon Short Line Railroad, 258 U. S. 22. Murray v. Cunard Steamship Co. 235 N. Y. 162. In the case last cited the Court of Appeals held that the same provision as is relied on by the defendant in the present case was reasonable and valid. The plaintiff, having accepted the contract, is bound by its terms whether she reads them or not. Fonseca v. Cunard Steamship Co. 153 Mass. 553, 555. Henderson v. Canadian Pacific Railway, 258 Mass. 372. Actual knowledge on the part of the ship’s surgeon or other employees of the defendant was not an excuse for failure to give the notice in writing. Henderson v. Canadian Pacific Railway, 258 Mass. 372, 376. St. Louis, Iron Mountain & Southern Railway v. Starbird, 243 U. S. 592. Gooch v. Oregon Short Line Railroad, 258 U. S. 22, 24. The letter addressed by the plaintiff prior to August 28, 1925, contained no notice of any claim for damages caused by her fall but related to other matters. It was said in Chertok v. Dix, 222 Mass. 226, at page 227: “A requirement for a written notice must show by some form of words that it is intended to fix rights.”
Exceptions overruled.