Harris v. Inhabitants of Newbury

Soule, J. The question whether the injury complained of was caused by a defect in the highway, either in the road-bed, or in the want of a sufficient railing, was properly left to the jury. The evidence did not present a case in which the danger, if any, to be guarded against, lay at a distance without the limits of the road, but raised the question whether the land immediately outside the highway fell off so precipitously that there was such risk of a traveller, using ordinary care in passing along the road, being thrown or falling into a dangerous place, that a railing was necessary to make the way safe and convenient. Murphy v. Gloucester, 105 Mass. 470. Adams v. Natick, 13 Allen, 429. Puffer v. Orange, 122 Mass. 389. The case was properly submitted to the jury on the question of due care on the part of the plaintiff. The whole facts as to the conduct of the plaintiff in the management of his horse, as to the speed at which he was going, as to the unbroken condition of the snow, as to the difficulty of seeing objects at a distance, and as to the characteristics of the place where the accident occurred, were in evidence, and it was for the jury to say whether the plaintiff was using due care. It would have been error in [325] the presiding judge to rule that there was no evidence which would warrant them in finding that he was. ■The refusal to rule that no sufficient notice under the St. of 1877, e. 234, was given by the plaintiff to the defendant, was correct. It is true that the notice must be such a communication made to the defendant, through its proper officer, as, either from the form of words used or from the circumstances under which it is made, indicates that it is made as a notice for the purpose of fixing the right of action of the person by whom or in whose behalf it is made. Kenady v. Lawrence, ante, 318. But the statute does not require it to be given in any particular form of words, and expressly permits it to be given by another for and in behalf of the person injured. It appeared that the plaintiff was a resident of Salem, that he was injured while on his way from Stratham in New Hampshire; and that on the day after the injury the son of the plaintiff, for and in behalf of his father, called on one of the selectmen of the defendant town, took him to the place of the accident, and told him all about it. This evidence taken by itself might perhaps have warranted the jury in finding, from the circumstances under which the communication was made to the selectman, by a person, apparently a stranger, in behalf of his father who had been hurt, that it was intended as notice of a claim for compensation. And as this communication was followed by a letter from an attorney, asking for compensation, we can have no doubt that the requirement of the statute as to notice was fully complied with. The action was not prematurely brought. The statute does not require that the notice be given, nor that the injury be sustained, thirty days before suit brought. It requires the notice to be given within thirty days after the injury, but does not call for any delay of suit after the notice. The requirement that the notice be given thus early after the injury is for the protection of the municipality, to prevent the bringing of actions on fictitious claims, and to enable towns and cities to investigate all claims for injury from defects in the highway soon after the injury is said to have been sustained, and while all important evidence, both as to the condition of the way and as to the fact of the injury, is likely to be within reach of diligent inquiry. Exceptions overruled.