Miller v. City of Springfield

Hammond, J. The plaintiff testified that he was driving on Dwight Street in the defendant city, near East Court Street, when the wheels of his wagon got into the street car tracks and “ the wagon switched around quite a little ” ; that he tried to get out of the rut; that he “ yanked ” his horse “ around . . . one way and then the other”; that he did not get out of the tracks; that when he “ yanked ” the horse, it seemed “ as though the breeching or something broke, and that let the wagon up onto ” the heels of the horse, and that then the horse “ kicked and ran ... as though he was mad,” up Dwight Street to the corner of Lyman Street, where the plaintiff was thrown from the wagon and injured. The distance from the place where the harness broke to the place where the plaintiff was thrown out [376] was about three hundred yards. The whole of Dwight Street, both outside and inside the rails of the street car track, was paved with brick, and the plaintiff contended at the trial, that the street was defective “ by reason of the way the bricks were laid up to the inside of the rails making ... a trough or ‘ too abrupt a slope ’ in which the wheel of the plaintiff’s wagon was caught.” The notice described the place of the injury as on Dwight Street near the intersection of Lyman Street, and about twenty-five feet therefrom, and the defect as the “ faulty construction of the paving in and around the rails of the ” street railway track. At the close of the evidence the defendant, evidently insisting that the notice was inaccurate in its statement of the place and cause of the injury, asked the court to rule that “if the defendant was led to believe by the notice, and did believe that the alleged defect which caused the accident was ‘ about twenty-five feet from Lyman Street,’ then the plaintiff cannot recover.” The court declined so to rule, but ruled that the question, whether or not the defendant was misled, became material only in case the notice was insufficient, and submitted the question of the sufficiency of the notice to the jury under instructions which authorized them to find for the plaintiff if they thought the notice was sufficient. To the refusal to give the instruction requested, and to the ruling submitting to the jury the question of the sufficiency of the notice, the defendant excepted. We think that the notice was insufficient, and that the jury should have been so instrudted. The plain purpose of the statute is, that the city shall have notice of the defect which causes the injury, so that it may understand what the plaintiff claims in that respect and may have a seasonable opportunity to investigate as to its liability. Ordinarily the place of the injury is substantially identical with the place of the defect, and, when that is the case, a description of the nature of the defect, joined with a statement of the place of the injury, is a sufficient description of the cause of the injury. The object of the statutory notice, so far as respects the cause of the injury, is attained, when it enables the city to find with reasonable certainty the locality and nature of the alleged defect. But when the alleged defect [377] is of the character complained of in this case, and the place of the injury is three hundred yards from the alleged defective spot in the street, it is manifest that a statement, as to the place of the injury, gives no indication whatever as to the real cause of the injury, for it fails to point out the defect with which the wagon came in contact. The notice in this case does not indicate any place as defective except that where the injury occurred, namely on Dwight Street “ near the intersection of Lyman Street, and about twenty-five feet from said Lyman Street.” The defect, which was the cause of the injury, was not there but three hundred yards distant therefrom, and it was of that defect that the city should have had notice. It was not sufficient that the existence of a similar defect elsewhere was stated. Such a notice would not aid the city in investigating the question of its liability. The plaintiff however contends, and there was evidence tending to show, that the same defect existed the whole length of Dwight Street, from East Court Street to Lyman Street. If this was so, then a mere description of the nature of the defect would be too indefinite in a case like this to inform the city of its locality, and would fail to meet the purpose of the notice. And especially would this be so where, as in this case, the only locality stated in the notice is three hundred yards distant from the cause of the injury. Norwood v. Somerville, 159 Mass. 105. The causé of the injury was not to be found in the defective condition near Lyman Street, but in that near East Court Street. This was the defect with which the wagon came in contact, which was the cause of the injury, and of the locality of which the notice should have given information. Of the locality of this defect the notice gave no sufficient information, and therefore failed to meet the statutory requirements as to the cause of the injury. The insufficiency of the notice is not such as to be fatal to the plaintiff in another trial, however, provided he bring himself within the proviso contained in St. 1888, c. 114. Exceptions sustained.