Bowes v. City of Boston
| Decision Date | 08 January 1892 |
| Citation | 29 N.E. 633,155 Mass. 344 |
| Parties | BOWES FEGAN v. CITY OF BOSTON. FEGAN v. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.D. Long, for plaintiffs.
R.W Nason and T.M. Babson, for defendant.
These are four suits, tried together, in all of which the defendant's liability depends on the same facts. Our discussion of the first will be equally applicable to the others also.
The only ground on which the plaintiff seeks to recover is that the horse which she was driving shied at a pile of stones and passed to the opposite side of the road, so that one of the wheels of the buggy scraped against a stone in another pile there, making a loud noise, but not diverting the carriage from its course, or causing it to tip, or in any way disturbing its equilibrium; that her horse was frightened at the noise, and started up, and after trotting fast a short distance, and going between trotting and running, broke into a run, and in turning a corner threw her out, and caused the injury. The notice given to the defendant stated the defect and cause of the injury to be "large stones extending about six feet into the traveled part of said way, *** piled within the traveled way in such grotesque and unusual shape that they constituted a nuisance by their liability to frighten horses." An injury resulting from such a cause is not one for which a city or town is liable, and the jury were instructed at the trial that, in order to recover, the plaintiff must satisfy them that a collision with the pile of stones was the sole cause of the accident. The notice gave the authorities of the city no reason to expect that the plaintiff would present at the trial such a case as that on which she finally relied. They might well assume that the statement in the notice was true, and that the plaintiff claimed damages on account of an accident caused by the fright of her horse at a pile of stone of such a grotesque and unusual shape as to be likely to frighten horses. The giving of a proper notice, stating the time, place, and cause of the accident, is a condition precedent to recovering in cases of this kind. Gay v. Cambridge, 128 Mass. 387; McDougall v. City of Boston, 134 Mass. 149. Under the statute of 1882, c. 36, which was repealed and re-enacted by the statute of 1888, c. 114, a notice defective in either of these particulars is sufficient if it is shown "that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby." Under this statute the burden of proof is on the plaintiff to show that the defendant was not misled by the notice, as well as that there was no intention to mislead. This may often be inferred from the circumstances, without testimony directly to the point. But in the present case the notice was of a kind which would have a direct tendency to mislead; and there was no evidence tending to show that the authorities were not misled by it, or that they "ever, until the time of the trial, had a different account of the accident than the one given in the notice." Such a notice, and such an investigation as the authorities would naturally make on account of it, would be likely to lead them to rest their defense on the legal proposition that cities are not liable for accidents caused by the fright of horses from objects of a grotesque or unusual appearance in the street. As is said in Fortin v. Easthampton, 142 Mass. 486, 8 N.E. 328, a misstatement is more likely to mislead than no statement at all. We are of opinion that there was no evidence on which the jury could find that the notice was sufficient to enable the plaintiff to recover for an injury caused by a collision with the pile of stones, and that the ruling requested on this point should have been given.
In the last two suits the court was right in refusing to rule that the administrator could not recover in both actions if he proved the facts alleged in both. The right of action given by Pub.St. c. 52, § 17, is independent of the right of action given by section 18 of the same chapter. The statute creating it was enacted at a different time, and for another purpose. The right to recover damages suffered in his life-time by one who dies from an injury received on a highway survives to his administrator for the benefit of his estate, and the damages are estimated on the theory of making compensation. Pub.St c. 165, § 1. The action by an administrator under section 17 on account of his intestate's loss of life is to recover a sum not exceeding $1,000 for the benefit of the widow and children or of the next of kin of the deceased, to be estimated according to the degree of culpability of the defendant. Both actions, under the statute, may...
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