Conners v. City of Lowell

Knowlton, J. The defendant excepted to the refusal of the court to take the case from the jury, on the ground that the notice was insufficient, and that there was no evidence to show that there was no intention on the part of the plaintiff to mislead, and that the defendant was not in fact misled by the notice. The only criticism upon the notice is, that it stated the place of injury to be on the sidewalk nearly opposite the premises on the corner of Central and Centre Streets, occupied by William B. Spalding, when it was directly opposite these premises. The premises extended along the street sixty-three and one half feet. The designation of the place as on the sidewalk implied that it was not at the junction of the two streets within the limits of Centre Street, and the mention of Spalding’s premises on the northerly corner indicated that the accident must have happened either opposite Spalding’s estate, or very near it, farther north. The notice pointed to Spalding’s premises as the nearest object by which to designate the place, and was in substance as if it had said “ opposite or nearly opposite ” those premises. As the length of Spalding’s line was only sixty-three and one half feet, and as the evidence tended to show that there was a gutter there extending across the sidewalk and an accumulation of ice such as the notice described, we are of opinion that the notice was sufficient. Spellman v. Chicopee, 131 Mass. 443. Lowe v. Clinton, 133 Mass. 526. McCabe v. Cambridge, 134 Mass. 484. We are also of opinion that, inasmuch as the notice had no tendency to mislead the defendant, the jury might have found that the plaintiff did not intend to mislead, and that the defendant was not in fact misled thereby. Fortin v. Easthampton, 142 Mass. 486. Gardner v. Weymouth, 155 Mass. 595. Exceptions overruled.