City of Pueblo v. Babbitt

• Decision Date: 04 April 1910
• Citation: 108 P. 175,47 Colo. 596
• Parties: CITY OF PUEBLO v. BABBITT.
• Court: Colorado Supreme Court

108 P. 175

47 Colo. 596

CITY OF PUEBLO v. BABBITT.

Supreme Court of Colorado

April 4, 1910

Appeal from District Court, Pueblo County; John H. Voorhees, Judge.

Action by Lulu Babbitt against the City of Pueblo. From a judgment for plaintiff, defendant appeals. Affirmed.

W. O Peterson, D. A. Highberger, and John A. Martin, for appellant.

James H. Teller and J. H. McCorkle, for appellee.

STEELE C.J.

The written notice served upon the city clerk states that the injury occurred 'about the middle of the block, on the east side of Grand avenue, and between Thirteenth and Fourteenth streets,' whereas the injury occurred on the east side of Grand avenue between Twelfth and Thirteenth streets. Upon the trial the plaintiff was permitted to show that, within a short time after the service of notice counsel for the plaintiff advised the city attorney of its inaccuracy, and that the city attorney and the city engineer both examined the defective sidewalk on the east side of Grand avenue between Twelfth and Thirteenth streets, the place where the plaintiff was injured. The court instructed the jury that the inaccuracy in the notice was not sufficient to invalidate it, and that the notice was under the law and the evidence sufficient. The jury found the issues joined in favor of the plaintiff, and awarded her damages in the sum of $1,000. From the judgment in favor of the plaintiff the defendant appealed.

The only question presented by the appeal is the sufficiency of the notice. Section 6661, Rev. St. 1908, provides: 'Sec 149. No action * * * against any city * * * on account of its negligence, shall be maintained unless written notice * * * is given. * * * But the notice given under the provisions of this act shall not be deemed invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of injury: Provided, it is shown that there was no intention to mislead, and that the city council or board of trustees was, in fact, not misled thereby.' The contention of the city attorney is that, as the notice served did not correctly state the place of the injury, oral evidence was not admissible to explain or alter the notice and that if the notice required any amendment, such amendment must be served as provided by law. The purpose of the statute in requiring notice to be given is to enable the city officials to make a proper investigation of the nature and cause of the...