Johnson v. City of St. Paul

Collins, J. According to the complaint herein, the primary c.ause of the injuries said to have been received by plaintiff was the negli [366] gence of defendant city in keeping in repair a sidewalk at a particularly described point, which walk she alleges had become rotten, worn-out, broken, full of holes, and dangerous, so that, when she was walking on the same at this particular point, she was tripped by a loose plank, and, stepping into one of the holes, was violently thrown down. It was therefore proper and important for her to show the rotten and worn-out, or general, condition of the walk at and about the time of the accident, so that, from proof of this general condition, the presumption might arise that defendant knew, or ought to have known, all about it, and was careless and negligent in allowing such a state of affairs to continue. It was competent to show the general condition of the walk within a reasonable time after the day of the accident; for it is a matter of common knowledge that the wearing out, the natural decay, and general defective character of a sidewalk is not the work of a week or a month. The process.which tends to its natural destruction is gradual; and, if the walk in question was in the bad condition described by the witness when he examined it, it is safe to assert that it had not materially changed within four weeks. Its worn-out and unsafe condition when examined by the witness antedated the day on which the injuries were received, beyond all doubt. On the trial plaintiff’s counsel offered in evidence a paper which he claimed was sufficient notice of the injuries, and was properly served, under the provisions of Sp. Laws 1885, ch. 7, § 19, requiring •that such a notice be served on the mayor or city clerk within thirty days after the injuries have been received. The objections made by the city to the introduction of this paper in evidence, at first, were that it was incompetent, immaterial, and irrelevant; but finally counsel stated that the real objection was that the notice had not been addressed as it should have been. On its face it was addressed to the mayor and common council of the city, but it was served in due time upon the city clerk, and thereafter took its regular course, which brought it before the city council thirty-one days after the occurrence therein mentioned. The notice, and its manner of service, would have been unassailable, if it had actually been served on the mayor. Nor could it have been objected to if it had not been addressed to [367] any particular person or body, but had been served, exactly as it was, by delivery to the city clerk. So that one of the officers upon whom the statute requires written notice to be served within a specified period of time was actually served with the notice, within the period prescribed, and it was sent immediately to the council. The error in the address in the heading of the document was slight and unimportant, and did not mislead any one, or destroy its effect. It is of more importance that such a notice' should be served on the right party, than that it should be properly addressed to him. Wade, Notice, § 630. Judgment affirmed. (Opinion published 54 N. W. Rep. 735.)