Holcomb v. Town of Danby

The opinion of the court was delivered by Pierpoint, C. J. This action is brought to recover for an injury sustained in consequence of the insufficiency of a highway in the town of Danby. The first questions presented relate to the notice given by the plaintiffs to the town of the injury and of the place where it occurred. It is claimed on the part of the defendant that the court below erred in submitting the question as to the sufficiency of the notice to the jury. The case shows that there was no controversy or dispute upon the trial as to the place of the injury, or as to the prominent surrounding objects, or any of the facts bearing upon the question. This being so, the facts stated in the exceptions as appearing, may, for all practical purposes, be regarded as conceded. The question then is one for the court, whether upon the undisputed or conceded facts, the notice was sufficient as a matter of law. In submitting that question to the jury, under the circumstances of this case, we think the County Court erred. We think the court was also wrong in the manner of submitting the. question to the jury, even if it had been a case proper for their consideration. The court told the jury that “ it was not necessary to point out the place with all possible particularity, but that it was necessary to do it with reasonable particularity.” Thus far the charge does not appear to be objectionable ; but the court then proceeded to tell the jury what was meant by that reasonable particularity, thus, u to describe the place with as much particularity and minuteness as a person of common business capacity, in the exercise of such care and prudence as such persons generally use in their own affairs, would ordinarily use to inform another person of like capacity, of the place where the accident happened.” This leaves out of sight the fact that the party is legally bound to give notice of the place where the accident happened, that the party to whom the notice is given has an interest and an object in knowing the place, that he has a legal right to the information, and that the object of the notice is, to — 434 — enable the party to whom it is given, readily to find the place. The charge as given would lead the jury to understand that all the notice that the law required, was such notice as a man of ordinary business capacity would ordinarily give to one of his neighbors or friends as to the place where he had sustained an injury upon the highway, such neighbor or friend having no particular interest in the subject, especially as to the precise place, or an intention to attempt to find it. This, we think, is quite too loose and indefinite a rule to be applied in a case like the present. But although the County Court erred as above stated, it does not necessarily follow that the judgment should be reversed ; for if the jury decided the question correctly, and just as the court ought to have decided it, the defendant has sustained no injury, either by the fact or the manner of its submission to them. Hence, it becomes necessary for us to determine whether or not the notice given, taken in connection with the undisputed facts in the case, was sufficiently definite and explicit as to the place where the accident happened, to meet the requirement of the statute. The statute of 1870, No. 49, which was in force at the time of this injury, provides that no action shall be had or maintained in any court against any town for injuries received or damage sustained through the insufficiency of any highway or bridge, “ unless notice shall have first been given in writing to one or more of the selectmen, . . 1 stating the time when and the place where such injury was received.” The notice in this case describes the place where the accident occurred, .as being “ in the highway loading from Danby 4-corners to Tinmouth,” and “ near by the house of H. S. Herrick.” The'term, near, is a relative one, and, when applied to a place in a highway in a town, is a very indefinite one. It may mean ten rods, twenty rods, or fifty rods. The direction from Herrick’s house is not given, thereby doubling the uncertainty. The case shows that there were prominent objects in the immediate vicinity of the place that might easily have been referred to. The object that it was claimed caused the accident was a conspicuous one, and there was no other of a like character in that vicinity. In view of the terms of this notice and the facts stated, and also in view of the repeated decisions of this court — 435 — upon this question that have been referred to in the argument and need not be again referred to here, we think that the notice in this case did not indicate the place of the accident with that reasonable particularity that the law requires, and that it was insufficient to lay the foundation for a recovery in this case, and that the County Court should have so decided.' It is also claimed on the part of the defendant that the plaintiff cannot recover in this case because when the accident occurred she was travelling upon the Sabbath day, in violation of the statute which prohibits it except from necessity or charity; and requested the court to rule as a matter of law that upon the undis-. puted facts no such necessity existed as would justify the plaintiff in travelling on the Sabbath day.. This we think the court should have done. It has been repeatedly held in this State, that if a party sustain an injury by reason of an insufficiency in the highway while such party is travelling in violation of the statute, he cannot recover of the town for such injury. The facts in this case not only fail to show a necessity for the plaintiff’s travelling on the Sabbath, but show affirmatively that there was no such necessity existing. The only reason why the plaintiff’s journey was undertaken on the Sabbath was, because she and her brother had arranged to do so some weeks before, and this day was fixed in that arrangement, so- that her brother could have all the week days to do other work in ; and no other reason is assigned for this voluntary violation of the statute. .This did not constitute either a legal or moral necessity. To hold that it did, would wholly abrogate the statute. Judgment reversed, and judgment for the defendant. '