312 Mass. 302 | Mass. | 1942
The plaintiff, on January 23, 1935, was injured in a fall on the defendant’s premises due to an accumulation of snow. She gave due notice under G. L. (Ter. Ed.) c. 84, and brought this action of tort by writ dated January 18, 1940. The trial judge of the District Court denied her request to the effect that the action was brought within the period of the statute of limitations and found for the defendant. The Appellate Division ordered the report of the case dismissed, and the plaintiff appealed. The denial of her request presents the only question.
General Laws (Ter. Ed.) c. 84, entitled "Repair of Ways and Bridges,” provides a remedy by an action of tort for a person who sustains bodily injury or damage in his property by reason of a defect or want of repair or a want of a sufficient railing in or upon a way, subject to the provisions of §§ 15, 16 and 17 of said chapter. Section 18 of said chapter, inserted by St. 1933, c. 114, § 1, provides for notice by the injured person which shall be given within ten days after the injury, "if such defect or want of repair is caused by or consists in part of snow or ice, or both,” and §§19 and 20 of said chapter, inserted respectively by St. 1933, c. 114, §§ 2 and 3, provide for the service of notice and the effect of defective notices. Section 21 of said chapter provides that "The three preceding sections, so far as they relate to notices of injuries resulting from snow or ice, shall apply to actions against persons founded upon the defective condition of their premises, or of adjoining ways, when caused by or consisting in part of snow or ice; provided, that notice within thirty days after the injury shall be sufficient . . . .” This section contains further provisions as to notice in the event of the physical or mental incapacity of the injured person and, in case of his death, the manner in which notice may be given and the effect of any inaccuracy or misstatement in respect to the owner’s name.
We are of opinion that it was error to deny the plaintiff’s request.
The General Statutes, effective June 1, 1860, by § 22 of
Statute 1908, c. 305, entitled “An Act relative to notices to be given in certain cases of accidents,” provided as follows: “The provisions of sections twenty,1 twenty-one and twenty-two of chapter fifty-one of the Revised Laws, in so far as they relate to notices of injuries resulting from snow or ice, shall apply to actions against persons or corporations founded upon the defective condition of the premises of such persons or corporations, or of an adjoining way, whenever such defective condition is caused by, or consists in part of, snow or ice. Leaving the notice with the occupant of said premises, or, in case there is no occupant, posting the same in a conspicuous place thereon, shall be a> sufficient compliance with the foregoing provisions.” This statute was amended by St. 1913, c. 324, so as to provide, so far as material, that “notice within thirty days after the injury shall be sufficient.” Statute 1917, c. 344, entitled “An Act to codify and revise the laws relating to highways and bridges,” contained, in Part IV, § 26, the earlier provisions of law that the person injured should give notice within ten days if the defect or want of repair was
The defendant contends that said St. 1908, c. 305, was enacted as an amendment to §§ 20, 21 and 22 of c. 51 of the Revised Laws. We find nothing in the legislative history of G. L. (Ter. Ed.) c. 84, § 21, to support this contention. All that the Legislature did in 1908 was to make the provisions of said §§ 20, 21 and 22, “so far as they relate to notices of injuries resulting from snow or ice,” applicable to actions against persons or corporations founded upon the defective condition of the premises of such persons or corporations, or of an adjoining way, whenever such defective condition was caused by, or consisted in part of, snow or ice. This action was, in effect, the same as if the relevant provisions of these three sections had been set out in full and made applicable to actions described in said c. 305. The right of action against a municipality to recover damages for injuries on account of a defect in a public way is created and limited by statute. Whalen v. Worcester Electric Light Co. 307 Mass. 169, 174. The effect of G. L. c. 84, § 21, was considered in DePrizio v. F. W. Woolworth Co. 291 Mass. 143, where it was said, at pages 145-146: “The statute did not create a liability on the part of an owner of real estate for a defective condition existing thereon; that liability rests on common law principles. It manifestly put a limitation on the common law right of a person injured through a defective condition consisting in whole or in part of snow or ice and existing on some portions at least of an owner’s real estate. It required a written notice of the time, place and cause of the injury as a condition precedent to maintaining an action, whereas at common law no such notice was necessary.” No question of the statute of limitations was involved in that case, but the quoted language is sig
General Laws (Ter. Ed.) c. 260, § 2, provides, among other things, that actions of tort, except as otherwise provided, shall be commenced only within six years next after the cause of action accrues. Section 3 provides a limitation of four years for actions against sheriffs and their deputies. Section 4, even before, as well as after, it was amended by St. 1937, c. 385, § 9, described a variety of tort actions, as well as others, where the limitation was one or. two years, including “actions of tort for injuries to the person against counties, cities and towns.” There is no special reference to this plaintiff’s cause of action. Section 19 of said c. 260 provides that “If a special provision is otherwise made relative to the limitation of any action, any provision of this chapter inconsistent therewith shall not apply.” We are of opinion that the plaintiff’s right to bring her action within six years next after its cause accrued was not limited by any of the special limitations contained in said chapter or by anything contained in § 21 of said c. 84.
The order of the Appellate Division dismissing the report is reversed, the finding for the defendant is vacated, and the case is to stand for trial. Home Savings Bank v. Savransky, 307 Mass. 601, 607.
So ordered.