321 Mass. 382 | Mass. | 1947
The plaintiff, an employee of the defendant, was hurt, while at work on the defendant’s premises, by reason of slipping on a piece of cardboard beneath which was a small piece of ice. In this action of tort the plaintiff neither alleged nor proved that he had given notice in accordance with G. L. (Ter. Ed.) c. 84, § 21. The judge directed a verdict for the defendant, and, in accordance with a stipulation of the parties, reported the case to this court, on the terms that, if his ruling was in error, judgment is to be entered for the plaintiff in an agreed amount, otherwise judgment is to be entered for the defendant.
From the evidence summarized in the report, it could have been found that on March 26, 1943, the plaintiff, a truck driver employed by the defendant, was in the course of his employment upon a platform at the South Station on Atlantic Avenue, Boston, engaged in loading a truck; that the platform was in the defendant’s control; that with the aid of a helper he had pulled a “Red Cross container” across the platform and was stooping to lift it onto the truck when “he slipped on a dirty piece of cardboard concealed under which was a piece of ice about three inches square”; that the ice was dirty and the general area at which the plaintiff fell was dirty; that there were forty to fifty pieces of ice on the platform; and that the ice had not formed on the platform from natural causes, but had fallen there during the packing of a pipe leading to a drinking fountain or in some loading operations, and had been negligently suffered to remain.
The burden under G. L. (Ter. Ed.) c. 84, § 21, is upon the person injured to allege and prove that notice was given before the action was commenced. Regan v. Atlantic Refining Co. 304 Mass. 353, 354, and cases cited. The loading platform constituted premises within the meaning of that section. Paszkowski v. Stony Brook Paper Co. 210 Mass. 86. Erickson v. Buckley, 230 Mass. 467. Klein v. Boston Elevated Railway, 293 Mass. 238.
The plaintiff contends that the scope of the statute is
There is nothing in the contention that the workmen’s compensation act, G. L. (Ter. Ed.) c. 152, effected an implied repeal of G. L. (Ter. Ed.) c. 84, § 21, in common law actions by an employee against an employer. See Paszkowski v. Stony Brook Paper Co. 210 Mass. 86.
The plaintiff’s remaining contentions are not sustained by the record.
Judgment for the defendant. ■
G. L. (Ter. Ed.) c. 84, § 18, as appearing in St. 1933, c. 114, § 1; § 19, as amended by St. 1933, c. 114, § 2; § 20, as appearing in St. 1933, c. 114, § 3, as amended by St. 1939, c. 147.