
    MARIO CALIRI vs. HOWARD S. PALMER, et al. TRS.
    Suffolk, ss.
    Municipal Court of the City of Boston.
    Argued September 29, 1941
    Opinion filed December 13, 1941.
    Present: Putnam, 'C. J., Carr & Oilmen, JJ.
    
    
      H. Lawlor, for the Plaintiff.
    
      J. J. Whittlesey, for the Defendant.
   Putnam, C. J.

This action of tort for personal injuries arises out of an accident which happened on February 24, 1936, on a sidewalk of a public way which ran under an open work bridge of the railroad of which the defendants are the trustees, and the declaration recites that it was “due to the negligence and carelessness of the defendant, its agents, servants or employees, in allowing an artificial accumulation of ice and/or snow to accumulate on said sidewalk, the same coming from the property of the defendant . . . ”.

There was ample evidence to warrant the express findings of fact made by the trial judge that there was upon the sidewalk an artificial accumulation of ice due to the dripping of water from icicles on the steel pillars supporting the overhead bridge which was so constructed and located that through operation of natural causes an icy and dangerous condition would result; that such conditian had existed for a week or more before the accident; that the plaintiff, while in the exercise of due care fell on the ice and received injuries; and that the defendants were negligent.

■The defendants seasonably presented certain requests for rulings which raised the question of the necessity, as a condition precedent to his recovery, of the plaintiff’s proving that he had given a notice under Gr. L. (Ter. Ed.) C. 84, sec. 21. These requests were denied. The report contains no evidence, and the declaration does not allege, that any notice was given. The trial judge found for the plaintiff. The only question argued before this division was as to the necessity of. a notice.

There seems to be no occasion to review here at any length the scope and consequences of St. 1908, C. 305, which is now G. L. (Ter. Ed.) C. 84, sec. 21. It first came before the Supreme Judicial Court in Baird v. Baptist Society, 208 Mass 29, decided in 1911. That court there said “It is to be observed that this statute (St. 1908, C. 305) is not an amendment to R. L. C. 51, sec. 20 (now G. L. (Ter. Ed.) C. 84, sec. 181). It has no relation whatever to the statutory liability imposed by that chapter. So far as respects public streets it refers only to the common law liability for the creation of a nuisance therein, and gives to those liable at common law for defect in a public way the same right to notice as that to which theretofore those upon whom rested the statutory liability were entitled”.

Doubtless the defendants’ overhead bridge, carrying the tracks and right of way over Dudley Street, was constructed by official permission, and at official direction, in the course of a grade crossing abolition proceeding under G. L. (Ter. Ed.) C.159, sec. 65 et seq or some predecessor statute, and consequently might be held not to be a nuisance per se. See Marshall v. Holbrook, 276 Mass. 341, 346-7. However that may be, and assuming that this bridge with ice running down its pillars onto the sidewalk could be found to be a nuisance, it is plain that, under G. L. (Ter. Ed.) C. 84, sec. 21, the defendants were entitled to the notice provided for in that statute.

Emphasis is laid by the plaintiff and the trial judge on the case of Solomon v. Weissman, 265 Mass. 423. It is true that the printed report of that case contains no mention of a notice, but an examination of the original papers discloses that the defendant’s bill of exceptions recites that “No question is raised relative to notice".

It was error to refuse to grant the defendants ’ fifth, sixth and seventh requests for rulings, and there being no allegation or evidence that a notice was given, the order must be: Judgment for the defendants.  