Townsend v. City of Boston

By the Court. This is an action of tort to recover compensation for personal injuries alleged to have been received by a traveller upon a public way defective in part by reason of ice. It was a condition precedent to the plaintiff’s right of recovery that within ten days after being injured a notice stating the time, place and cause of the injury should be given to the city unless “by reason of physical or mental incapacity it is impossible” to do so. R. L. c. 51, §§ 20, 21. The evidence was that after her accident the plaintiff was treated at a hospital for five weeks, and could not sit up; that she was suffering a good deal from shock and was kept under opiates a great deal for two weeks in order to relieve pain; that she did not sleep well and was pretty uncomfortable; that she lived with her brother and sister, whom she immediately after the occurrence told about the accident, including its time and place; that her sister and “plenty of people” came to see her at the hospital. These facts do not sustain the burden which rested upon the plaintiff of proving an adequate excuse for failure to give the required notice. The case is fully covered by May v. Boston, 150 Mass. 517, Saunders v. Boston, 167 Mass. 595, Ledwidge v. Hatharway, 170 Mass. 348, Goodwin v. Fall River, 228 Mass. 529. Exceptions overruled.