The first two counts of the declaration are under cl. 1, § 1, of the St. of 1887, c. 270; the third count is under cl. 2 of the same section. In each of the counts it is alleged that notice of the time, place, and cause of the injury was given to the defendant. The only person who could maintain an action for the death of Laurentz Gustafsen was his widow; and as he was instantly killed, this is the only action which could be maintained. St. 1887, c. 270, §§ 2, 3, Ramsdell v. New York & New England Railroad, 151 Mass. 245. The notice given was signed for the plaintiff by her attorneys, and it was given “ within thirty days of the death ” of Laurentz Gustafsen, and as the death was instantaneous, this must have been within thirty days of the “ occurrence of the accident ” causing the death. It has not been contended that the notice is not sufficient in form, if under the statute the widow could give notice.
The contention of the defendant is, as we understand it, that by the St. of 1887, c. 270, § 3, as amended by the St. of 1888, *472c. 155, when the person injured is instantly killed, the notice must be given by the executor or administrator of his estate. As the executor or administrator cannot maintain an action, there is no reason why either one or the other should be appointed for the purpose of giving notice, unless the statutes require it. It is argued that this is a statutory action which cannot be maintained unless notice is given according to the statutes, and that the statutes, in such a case as this is, authorize only an executor or administrator to give the notice, which they may give within thirty days after their appointment. It is plain that, if the person killed left no estate to be administered upon, the appointment of an administrator ought not to be necessary to enable the widow or next of kin to recover money of other persons for their own use.
The provisions concerning notice in the statutes cited seem to have been taken from the Pub. Sts. c. 52, §§ 19, 21, and the St. of 1882, c. 36. See Pub. Sts. c. 73, § 6, c. 112, §§ 212, 213 ; St. 1886, c. 140; St. 1888, c. 114. The Legislature apparently did not observe that under the Pub. Sts. c. 52, § 17, the action for damages on account of death must be brought by the executor or administrator of the deceased, while under the St. of 1887, c. 270, such an action must be brought by the widow or next of kin. Under the Pub. Sts. c. 52, §§ 17, 18, if a person dies after having consciously suffered, there may be two causes of action, each to be prosecuted by the executor or administrator of the deceased. Under the St. of 1887, c. 270, there can be but one cause of action. If there is conscious suffering, the action must be brought by the person injured, or his executor or administrator; if there is death and no conscious suffering, the action must be brought by the widow or next of kin.
The St. of 1887, c. 270, § 3, required notice to be given within thirty days “ from the occurrence of the accident causing the injury or death,” but it did not expressly designate the person who should give the notice. The St. of 1888, c. 155, attempted to supply this deficiency, and also to enlarge the time within which the notice might be given, if from physical or mental incapacity it was impossible for the person injured to give the notice within the thirty days, or if he died without having given the notice and without having been for ten days at any time *473after his injury of sufficient capacity to give notice. In Taylor v. Woburn, 130 Mass. 494, an action against a town for injuries sustained by reason of a defect in a highway, it was held that under the St. of 1877, c. 234, a notice given by a father in behalf of his son who had died was sufficient, although the father had not then been appointed administrator of the estate of the son. The St. of 1877, c. 234, § 4, provided that the notice might “ be given by the person injured or by any other person in his behalf; provided, however, that if from physical or mental incapacity it be impossible for the person injured to give the notice within the time hereinbefore provided, he may give notice within ten days after said incapacity is removed.” If, however, the last clause of § 1 of the St. of 1888, c. 155, is applicable to the present action, since the decision in Nash v. South Hadley, 145 Mass. 105, there would be great difficulty in holding that the notice in the present case was signed by a person authorized to give notice.
The St. of 1'887, c. 270, § 3, makes a distinction between a case of personal injury and a case of death, by which is meant instantaneous death. The principal reason for passing the St. of 1888, c. 155, was to provide for cases of personal injury which did not cause instantaneous death, but which might or might not ultimately result in death, whereby the person injured was, temporarily at least, made physically or mentally incapable of giving notice. The only part of the statute which can have any intelligent application to a case of instantaneous death is the latter part of the following clause: “ The notice required by this section shall be in writing, signed by the person injured or by some one in his behalf.” In the section referred to in this clause a notice was required before an action could be maintained “ for the recovery of compensation for injury or death.” When the death is instantaneous, notice cannot be given by the person injured, and must be given, if at all, by some one else. A majority of the court think it reasonable to hold .that the statutory provision that the executor or administrator may give notice was not intended to apply to a case of instantaneous death, where the executor and administrator had no interest in the action to be brought, and no duty in regard to it, and that the only provision of the statute which is applicable *474to the present case is that part which requires the notice to be in writing, and to be signed by some one in behalf of the person injured, and that under the decision in Taylor v. Woburn, ubi supra, this notice was signed by a person authorized to give notice.
There was, we think, evidence for the jury that there was a defect in the condition of the ways used in the business of the defendant which arose from the negligence of the defendant. There was evidence that the ditch across the road-bed and track was such as to render the track dangerous to be used by the employees of the defendant in the manner in which they had been accustomed to use it, if they did not know of the ditch. If the defendant caused the ditch to be dug, and if no guard was put up, or warning given, this was evidence of negligence on the part of the defendant. It is not contended that any guard was put up, or warning given, and the circumstances afforded evidence that the ditch was dug by the defendant. The contention is that Laurentz Gfustafseu either knew of the ditch, or, if he had used reasonable care, would have known of it. Whether he actually knew of it is a question of fact of which there is no direct evidence either way, and it must be for the jury to infer what the fact in this respect was from the circumstances proved. Whether he ought to have known of it relates more directly to the Question of due care on his part.
Whether there was evidence for the jury that Laurentz Gustafsen was in the exercise of due care at the time of the accident is a question of more difficulty. He was not employed in digging the ditch, or about anything connected with the ditch, but he was employed near it on other work. The more exclusively he attended to his own duty, the less he would be likely to know about other kinds of work done by other employees. Whether he knew of the ditch before he came upon it when he was hauling the car must, under the circumstances, be a question for the jury. There was evidence from which the jury might properly infer that he was using due care in hauling the car, if the track and road-bed had been in their usual condition, or if he had not known of any change in their condition. The most formidable argument is that, as it was daylight, and as the ditch was visible, and directly across his path, he would, if he had used due *475care, have seen it when hauling the car towards it, and would have avoided it. A majority of the court think that this, too, was a question for the jury. His attention was necessarily more or less directed to his own work, which would naturally require him to lean forward and bend down towards the track; the car moving constantly forward would somewhat impair his freedom of action if he came upon the ditch without knowing beforehand that it was there; and it is impossible to say, as matter of law, that he was careless in putting himself in the position he was in, if he did not know of the ditch. In all the cases arising from visible defects in ways such as this was, whereby the plaintiff was injured, it never has been held, as matter of law, negligence on the part of the plaintiff that he did not see the defect and avoid it. See Ferren v. Old Colony Railroad, 143 Mass. 197; Maguire v. Fitchburg Railroad, 146 Mass. 379; Babcock v. Old Colony Railroad, 150 Mass. 467. New trial ordered.