Grogan v. City of Worcester

Holmes, J. The defendant argues that the cause of the injury to the plaintiff was the drain across the sidewalk which made him stumble; that the want of a fence, which would have prevented his falling into the sewer, was merely an aggravation of the damage ensuing upon an already accomplished wrong; and therefore that the notice stating the lack of railing as the cause was bad. But the cause of which the statute requires notice to be given to the city is that one among the conditions of the effect for which the city is answerable. It is admitted that the notice was good, unless the drain was a defect. It would be a sufficient answer to the defendant’s argument, therefore, to say that it does not appear with certainty that the drain was a defect for which the city was responsible, however probable it may be. Furthermore, it does not appear that the plaintiff would have been hurt if he had not fallen into the sewer; and, even if we were to assume that the drain across the sidewalk was a defect, as well as a necessary condition of the injury, we think it would be interpreting the statute with too great strictness and excessive refinement to say that it was not satisfied by stating the proximate cause of the injury complained of. See Stevens v. Boxford, 10 Allen, 25. Exceptions overruled.