Dalton v. City of Salem

• Decision Date: 23 March 1885
• Citation: 139 Mass. 91,28 N.E. 576
• Parties: DALTON v. CITY OF SALEM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 91

28 N.E. 576

DALTON

v.CITY OF SALEM.¹

Supreme Judicial Court of Massachusetts, Essex.

March 23, 1885.

Exceptions from superior court, Essex county; ALDRICH, Judge.

Action by Phoebe A. Dalton against the city of Salem for personal injuries sustained by falling on a sidewalk which was in a slippery and icy condition. The notice of the injury stated the place where it occurred as “on the sidewalk on Lafayette street, near Lagrange street,” and the court held the notice in this respect insufficient. Plaintiff then offered to show that on the day of the accident her son, at her request, called on the mayor of the defendant city, and gave him notice of the injury and of her claim for damages; that the mayor, after being told the particulars, requested him to state them to the city clerk, and have a notice prepared; and that the clerk drew up the notice, and, after it had been signed for her by her son, filed it. This evidence was excluded. Plaintiff excepts. Exceptions overruled.C. Sewall, for plaintiff.

F.L. Evans, for defendant.

COLBURN, J.

Under the statutes in force at the time the plaintiff received her injury, it was necessary for her, as a condition precedent to her right to maintain this action, to give to the defendant a notice in writing of the time, place, and cause of her injury. St.1877, c. 234, § 3; St.1879, c. 244; ¹Shea v. Lowell, 132 Mass. 187. St.1882, c. 36, does not apply to this case. Shallow v. Salem, 136 Mass. 136. She gave a notice in writing to the defendant, which stated the time of her injury with particularity, and it has been decided that the notice states the cause of her injury sufficiently. Dalton v. Salem, Id. 278. The question now presented is whether the statement of the place of her injury in her notice is a sufficient compliance with the statute. The only statement of the place is that it was “on the sidewalk on Lafayette street, near Lagrange street.” Lagrange street leads from the easterly side of Lafayette street; and if we assume, as a fair construction of the notice, when applied to the premises, that it designates the easterly sidewalk of Lafayette street, it does not indicate whether the part of the sidewalk northerly of Lagrange street, or the part southerly of that street, was intended. The alleged defect was “the icy and slippery condition of the said sidewalk.” The accident happened on November 21st, and the notice was given on November 29th, and it cannot be supposed that at...