Bradbury v. Inhabitants of Benton

• Decision Date: 20 February 1879
• Citation: 69 Me. 194
• Parties: BENJAMIN M. BRADBURY v. INHABITANTS OF BENTON.
• Court: Maine Supreme Court

69 Me. 194

BENJAMIN M. BRADBURY v. INHABITANTS OF BENTON.

Supreme Judicial Court of Maine.

February 20, 1879

ON EXCEPTIONS, AND MOTION.

ACTION on the case to recover for personal injuries alleged to have been received December 13, 1875, on account of a defect in a highway which the defendant town was bound to keep in repair. Ad damnum, $5,000. Date of writ January 21, 1876.

Plea general issue and brief statement that the way described in plaintiff's writ was never legally established, and defendants were not bound to repair or maintain the same.

The verdict was for the plaintiff, the damages being assessed in the sum of $840.00. Thereupon the defendants moved to set aside the verdict and that a new trial be granted, because against law, evidence, and the weight of evidence, and likewise alleged exceptions to certain rulings of the presiding justice which are recited in the opinion. The notice to defendant town, put into the case, was in writing and as follows:

" Fairfield December 28, 1875. To the selectmen of the town of Benton, Maine:

Gentlemen A demand against the town of Benton has been left at this office for collection. Your immediate attention to the matter will save cost. The demand is for damages sustained by Benjamin M. Bradbury of Fairfield, Maine, in consequence of injuries received from defect in that portion of the covered bridge across the Kennebec river, which is situated in said town of Benton, and which said town is by law bound to keep in repair, on the evening of the 13th of December, A. D 1875. The nature of the injury, according to the statement of Dr. E. G. Fogg the attending physician, is inflammation of the periosteum (periostitis) of the tibia, at about the junction of the middle and the lower thirds of the right leg. Yours very truly, F. E. McFadden, att'y for Bradbury."

In the writ and declaration the plaintiff's injuries are described as " a dangerous contusion of the muscles of said leg, and the bones of said leg were then and there, by reason of said defect or hole in said bridge and highway, badly injured and displaced; his back strained and a general shock to his nervous system was then and there received by reason of the defect aforesaid, and many other grievous injuries were then and there sustained by said plaintiff by reason of the defect aforesaid, by reason whereof he has hitherto been confined to his room, his health has been greatly impaired, his life endangered, and he has suffered great pain and has been put to great expense for medical aid and nursing."

Other necessary facts appear in the opinion.

O. D. Baker, for the plaintiff.

S. S. Brown, for the defendants, contended:

1. The notice was insufficient, because:

(1). It was not expressed in the English language.

(2). It was revoked.

(3). It did not specify the injuries which are alleged in the declaration.

II. The location of the way was not sufficient to charge the defendants, because:

(1). The commissioners had no jurisdiction of the way, it not being asked for in the petition, and it may be impeached collaterally. Small v. Pennell, 31 Me. 267.

(2) The accident occurred before the liability of the town had become fixed, it being inside of one year after location. R. S., c. 18, § 14.

(3.) The court erroneously instructed the jury in regard to prospective damages, because the declaration did not allege them. 1 Chit. Plead., §§ 339, 399. Patten v. Libbey, 32 Me. 378. 2 Greenl. Ev., § 254, et seq. Hunter v. Stewart, 47 Me. 419.

LIBBEY J.

Exceptions are taken to the rulings of the presiding judge on three points.

I. As to the sufficiency of the notice by the plaintiff to the town after the injury. The notice was in writing, and the judge instructed the jury that it was sufficient. It is claimed that this instruction was erroneous:

(1). Because the notice was not expressed in the English language. The injury specified is to the " periosteum of the tibia." The words " periosteum" and " " tibia" have become Anglicized, and are now used as English words. They are found in the English dictionaries now in use.

(2). Because it was revoked. The ground of this objection is that the plaintiff's attorney, after the action was commenced, thinking the notice not so specific as might be required, went to one of the selectmen of the defendant town and said " the first notice was not good; he waived it and would rely upon a new one," which he read. There is no pretense of a withdrawal of the claim against the town. This proceeding by the attorney in no way impaired the effect of the notice which had been given.

(3). Because it does not specify the injuries as they are alleged in the declaration. It was not necessary that it should do so. The plaintiff is not confined and limited to the precise statement of his injuries contained in his notice. The true nature and extent of the injuries may not be developed so as to be known to the plaintiff till after the time in which the notice is required to be given. It is sufficient if the town has such notice as will enable its officers to investigate the case and acquire a full knowledge of the facts. Blackington v. Rockland, 66 Me. 332.

II. The second point excepted to is the instruction of the judge to the jury upon the questions of the legality of the location of the way and the liability of the defendant town to keep the bridge in repair. The instruction was as follows: " If that bridge continued to be traveled by the public as a part of the public highway after the location, then the location which has been introduced is sufficient in law to cast upon the defendant town the burden...