Stefani v. Freshman , 232 Mass. 354 ( 1919 )

Braley, J.

The action is tort to recover damages for personal injuries caused by a ridge of ice on the sidewalk of a public way on which the plaintiff while a traveller slipped and fell. The jury having returned a verdict for her, the case is here on the defendant’s exceptions to the admission of evidence, and to the refusal of the presiding judge to rule that the action could not be maintained.

The evidence warranted a finding, that the accumulation of ice was caused by the freezing of water dripping from a wooden canopy or hood which projected over the sidewalk and formed part of a building abutting on the street, occupied by the defendant as a tenant of one Langmaid the lessor. It is argued that, if the plaintiff can recover, the lessor alone is liable under the rule of Maloney v. Hayes, 206 Mass. 1, and Marston v. Phipps, 209 Mass. 552. But by the terms of the lease the entire building was demised, and, having covenanted “to do all the necessary repairs,” the defendant as between himself and the public was required to keep the building in such a state of repair that the sidewalk of the adjoining street would be reasonably safe for the plaintiff’s use. Shipley v. Fifty Associates, 101 Mass. 251. Leonard v. Storer, 115 Mass. 86. Coman v. Alles, 198 Mass. 99, 102. The lessee’s possession and control of the building included the canopy over the doorway or entrance to the basement store, which the jury on evidence properly admitted could find had been put up and maintained by him without a gutter or conductor whereby the water might have been diverted from the street and the formation of ice thereon prevented. The building under such conditions imperilled the safety of travellers, and was a nuisance to which the jury could say the plaintiff’s injury was attributable. Shipley v. Fifty Associates, 101 Mass. 251, 253

But under St. 1908, c. 305, as amended, the plaintiff cannot prevail unless the defendant was given notice of the time, place and cause of the injury. Tobin v. Taintor, 229 Mass. 174. It was contended at the trial that the notice “was not properly addressed to either defendant and . . . the cause of the accident was not properly explained,” and it was urged at the argument, that no cause of action is described in the notice because the “time, place and cause of accident” are not specified. The defendant, however, duly received the notice, which under St. 1908, c. 305, as amended, is sufficient not only in form but in substance for reasons stated in Merrill v. Paige, 229 Mass. 511.

The plaintiff having been entitled to go to the jury, the ruling requested was refused rightly, and, no error of law appearing in the admission of evidence, the exceptions should be overruled.

So ordered.