Creedon v. Inhabitants of Town of Kittery

• Decision Date: 19 December 1918
• Parties: CREEDON v. INHABITANTS OF TOWN OF KITTERY.
• Court: Maine Supreme Court

105 A. 124

117 Me. 541

CREEDON

v. INHABITANTS OF TOWN OF KITTERY.

Supreme Judicial Court of Maine.

Dec. 19, 1918.

Agreed Statement from Supreme Judicial Court, York County, at Law.

Action by Joseph F. Creedon against the Inhabitants of the Town of Kittery. Before the Supreme Judicial Court on stipulation. Case ordered to stand for trial.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

Page, Bartlett & Mitchell, of Portsmouth, N. H., Arthur E. Sewall, of York Village, and Hiram Willard, of Sanford, for plaintiff.

Aaron B. Cole, of Kittery, and Emery & Waterhouse, of Biddeford, for defendant.

PHILBROOK, J. This is an action to recover for personal injuries sustained by the plaintiff, and damages done to his automobile, by reason of an alleged defective road or way which, by law, the defendant town was obliged to repair. The right of action is given solely by statute (R, S. c. 24, § 92), and as a prerequisite to bringing such action it is provided that:

"Any person who sustains injury or damage, as aforesaid, or some person in his behalf, shall within fourteen days thereafter, notify one * * * of the municipal officers of such town, by letter or otherwise, in writing, setting forth his claim for damages and specifying the nature of his injuries and the nature and location of the defect which caused such injury."

The injury occurred July 11, 1917, and on July 24, 1917, by his counsel, the plaintiff served the following notice on the municipal officers of the defendant town:

"To the Board of the Selectmen of the Town of Kittery, in the County of York and State of Maine, and to the County Commissioners of said County of York:

"You are hereby notified that Joseph F. Creedon of Laconia, N. H., on the 11th day of July, 1!)17, was injured while attempting to drive his automobile across the Spruce creek bridge in said Kittery on the highway leading from York to Portsmouth, and that he claims damages against the said town in the sum of five thousand dollars ($5,000).

"The cause of his injuries was the careless, dangerous and negligent manner in which the selectmen were repairing the bridge, aforesaid, and their failure to warn him of the dangerous condition of the said bridge. The bridge at the time of the accident was being repaired by the selectmen by planking lengthwise over the old planking of the bridge, and only one-half of the width of the bridge had been newly planked, thus leaving the easterly half of the bridge two or three inches higher than the westerly half, while at the end of the bridge toward York the old planking was four inches higher than the roadbed of the highway on the west side of the bridge and five or six inches higher than the bed of the highway on the east side of the bridge. No warning of this condition was posted, and when the automobile struck the planking of the bridge the steering gear was wrenched from his control, and the automobile with its occupants ran over the side of the bridge and fell into Spruce creek, whereby the said Joseph F. Creedon was nearly drowned, suffered a severe nervous shock and internal injuries, and was greatly bruised and otherwise damaged, and his automobile was badly wrecked and injured.

"Dated at Portsmouth, N. H., this twenty-fourth day of July, 1917."

The defendant town challenges the sufficiency of this notice. By agreed statement, the parties appear before us with the stipulation that if this tribunal determines that the notice is sufficient the case is to stand for trial, otherwise the plaintiff is to be nonsuited.

Prior to the enactment of chapter 215, Pub. Laws 1874, although the statutory right of action against towns for injuries sustained by reason of defective ways then existed, no notice like the one under consideration was required. The Legislature of that year added the provision that—

"Any person who sustains any injury or damage as aforesaid, shall notify the * * * municipal officers of such town * * * within sixty days thereafter, by letter or otherwise, setting forth his claim for damages, and specifying the nature of his injuries."

From the quotation of the existing statute first above given it will be observed that this requirement of notice has obtained until the present day, although the time in which it must be given has been abbreviated, the method has been strictly confined to writing, and the requirement has been added of specifying the "nature and location of the defect which caused the injury."

Since the passage of the act first requiring notice, at least one score and ten times this court has been required to pass upon its purpose and announce the spirit in which it should be construed.

Kind, degree, and causes of injury, or damage, arising from accidents upon defective ways, in the very nature of things, present so many different instances and circumstances that it will readily occur to one possessing even ordinary powers of observation and reflection how difficult, if not well-nigh impossible, it would be to establish a hard and fast rule, or precedent, as to form of notice required by the statute in this class of cases. In the very early judicial interpretation put upon such notice (Blackington v. Rockland, 66 Me. 332) our court said:

"Notices, in this class of cases, are not to be very strictly construed. They will often be given directly by the persons concerned, and without the aid and intervention of counsel; and the statute should not be so narrowly interpreted that they cannot ordinarily be given by such persons with safety to themselves, and at the same time be sufficient to protect the interests of the town. In many cases, too, the persons injured will not be able, at so early a date as required by the statute," then 60 days, but now only 14, "to define the precise nature or estimate accurately the probable extent of the injury received. The main object of a notice is, that the town may have an early opportunity of investigating the cause of an injury and the condition of the person injured, before changes may occur essentially affecting such proof of the facts as may be desirable for the town to possess; and a minor purpose of a notice would be, perhaps, that the town should have a favorable chance to settle a claim before being sued for it, should they see fit to do so. In this view, we think a notice is sufficient, which describes the facts substantially and in general terms, so that thereby a town. may have statements and intimations that would be likely to lead them, acting reasonably, into such inquiry and investigation as would result in their acquiring a full knowledge of the facts of the case."

This early rule, promulgated in 1876, two years after the legislative requirement of notice, was again recognized that same year in Sawyer v. Naples, 66 Me....