City of Denver v. Bradbury

• Decision Date: 14 March 1904
• Citation: 75 P. 1077,19 Colo.App. 441
• Parties: CITY OF DENVER v. BRADBURY.
• Court: Colorado Court of Appeals

75 P. 1077

19 Colo.App. 441

CITY OF DENVER v. BRADBURY.

Court of Appeals of Colorado

March 14, 1904

Appeal from District Court, Arapahoe County.

Action by Carrie C. Bradbury against the city of Denver. From a judgment for plaintiff, defendant appeals. Affirmed.

H.A. Lindsley, Samuel W. Belford, J.M. Ellis Guy Le R. Stevick, and N.B. Bachtell, for appellant.

T.H Hood, amicus curiae. J. Warner Mills, for appellee.

GUNTER J.

Action for personal injuries. Judgment for plaintiff. Defendant appeals.

1. The charter of the city of Denver (Acts 1893, p. 233, c. 78) art. 9, § 9, provides that within 30 days after injuries are received the mayor or city council shall be given notice in writing of such injuries, stating when, where, and how received, and the extent thereof. The notice served herein is said to be fatally defective in departing from the evidence and complaint in its statement of how the injury occurred. The position, in effect, is that as to the cause of action stated in the complaint no notice was served advising defendant city as to how the injuries occurred.

This section has been construed. City of Denver v. Saulcey, 5 Colo.App. 420, 423, 38 P. 1098, turned upon the proper service of the notice, but in the course of the opinion the court pertinently said: "The object of the statute is to advise the executive officers of the city of the fact of the injury and of the claims made by the injured person, that they may investigate the matter, and, while the circumstances are fresh and the evidence easily acquired, ascertain what, if any, responsibility ought to be assumed by the city." In Denver v. Barron, 6 Colo.App. 72, 77, 78, 39 P. 989, the notice stated as the cause of the injury, or how it occurred, that the ground over a sewer recently laid gave way when plaintiff drove her horse upon it. The evidence was that for probably 24 hours before the accident there had been at that point a hole in the street resulting from the sinking of the earth in the trench where the sewer was laid, and that plaintiff's horse stepped into it. It was urged that there was a fatal variance between the evidence and the notice. The notice was held sufficient to admit evidence that the cause of the accident was the hole in the street, the court saying that the city could not have been misled by the notice. The principle announced is that if the notice so advises the city of the cause of the injury that, guided thereby, it can investigate the question of liability, then the notice is sufficient. In Stoors v. City of Denver (Colo.App.) 73 P. 1094, upon demurrer to the complaint the notice was held insufficient. The notice stated that the claimant slipped and fell upon a public highway of Denver. The cause of the fall was not given. The court held that the purpose of such notice is to advise the city recently after the accident of its cause, so that an investigation can be made and liability determined. The cases there cited are upon this principle.

This statute is in derogation of common-law rights, and should be strictly construed in favor of such rights. "It should not be construed with liberality against the right of an injured party to maintain an action against the city, but, on the other hand, should receive a reasonably strict construction." Tattan v. City of Detroit, 128 Mich. 650 87 N.W. 894; Born v. City of Spokane, 27 Wash. 719, 68 P. 386; Bell v. City of Spokane, 30 Wash. 508, 71 P. 31; Reno v. City of St. Joseph, 169 Mo. 642, 70 S.W. 123; Lowe v. Inhabitants of Clinton, 133 Mass. 526; ...