Parker v. Town of Pittsfield

Watson, J. It is urged that the admission of the notice in evidence without objection was a waiver of any objection that might have been made against it. But this is not so. By statute (P. S. 4031), “No action shall be had or maintained in any court against a town for injuries received'or damages sustained through the insufficiency of a bridge or culvert, unless notice is first given in writing, signed by the party so injured or claiming damage, to one or more of the selectmen of the town in which the bridge or culvert is situated, # * * stating the time when and the place where the injury was received, and pointing out in what respect the bridge or culvert was insufficient or out of repair, and stating that such person will claim satisfaction of the town.” This statute pertains to the remedy, and it is essential to the right to maintain an' action to prove that the person injured or damaged gave notice to the town in compliance therewith. Kent v. Lincoln, 32 Vt. 591; Matthie v. Barton, 40 Vt. 286; Harris v. Townshend, 56 Vt. 716. A notice prima facie sufficient may upon the facts shown by the evidence be doubtful or even insufficient. Pratt v. Sherburne, 53 Vt. 370. It devolves upon the plaintiff to show such a notice to the selectmen as the law requires, having reference to the facts established by the evidence; and the failure to object to the notice when offered in evidence is no waiver of material defects therein, nor of the right to take advantage of such defects later in the course of the trial. See Law v. Fairfield, 46 Vt. 425; Pratt v. Sherburne, cited above. [159] The only other question before us relates to the sufficiency of the notice as to the place of the accident. It appears that the accident happened at a culvert in the Liberty Hill Road, and southerly from the point of junction of the highways named. The notice states this culvert to be located ‘ ‘ about ten rods southerly from the point of junction,” on the Liberty Hill Road, and as the “first culvert” on that road southerly from the point of junction. The special findings of the jury show that the accident happened at a plank culvert forty-one rods southerly from the point of junction, and that about half way between the place of this culvert and the junction of the roads there was a stone culvert which was the first culvert south of that junction. The word “about” has a relative significance varying with the circumstances. Hence the phrase “ about ten rods southerly from the point of junction” did not in contemplation state the exact distance. Nor is the distance given controlling. In Rogers v. Swanton, 54 Vt. 585, it appeared that the notice given by the plaintiff to the town was lost, and parol evidence was received to show the contents of the notice respecting the place where the accident occurred. The evidence on the part of the plaintiff tended to show that the notice stated the place as one quarter of a mile from the Aldis-Gadcomb place, “and three-quarters of a mile from the Brainard mill. ’ ’ The defendant offered to show that the distance from the place where the plaintiff claimed to have been injured to Brainard’s mill was one and one-fourth miles. The evidence was excluded and exception saved. This Court held that the testimony was properly excluded; that the place of injury might have been a mile and a quarter from Brainard’s mill and yet the notice be sufficient; for “distance must yield to a more definite description by reference to natural objects and the condition of the road.” The plaintiff’s evidence tended to show that the stone culvert was small in dimensions, and that both sides of the surface of the road were graded in such a manner as to conceal the culvert, to a considerable extent, from observation, and that there was no unevenness in the road as it crossed this culvert — indeed that the plaintiff’s husband, when going over the road looking for other culverts and landmarks for the purpose of describing the culvert where the accident happened, passed over the stone culvert without seeing or noticing-it. The plaintiff’s evidence also tended to show that at the time of the accident the condition of [160] the plank culvert was substantially as described in the notice, with the road gouged with water, close to the margin of the plank of the culvert, while there was no gouging out or undermining of the road near the stone culvert. In view of the fact that the notice substantially described the condition of the culvert and of the road where the accident occurred, and that the conditions at the stone culvert were materially different, it should seem reasonably certain that the selectmen, notice in hand, could have no trouble in finding the place. No more definiteness as to the place is required. Tinkham v. Stockbridge, 64 Vt. 480, 24 Atl. 761; Castle v. Guilford, 86 Vt. 540, 86 Atl. 804. It follows that in overruling the defendant’s motions for a verdict and for judgment, and in rendering judgment for the plaintiff, there was no error. Judgment affirmed.