Hinds v. Hinsdale

• Citation: 116 A. 635
• Decision Date: 07 March 1922
• Docket Number: No. 1795.,1795.
• Parties: HINDS v. HINSDALE.
• Court: New Hampshire Supreme Court

116 A. 635

HINDS

v. HINSDALE.

No. 1795.

Supreme Court of New Hampshire. Cheshire.

March 7, 1922.

Exceptions from Superior Court, Cheshire County.

Action on the case for personal injuries by Sarah C. Hinds against the town of Hinsdale, brought under Pub. St. 1891, c. 76, as amended by Laws 1893, c. 59. Verdict for the plaintiff, and defendant excepts to the court's finding that the statement filed by plaintiff under Pub. St c. 76, § 7, was sufficient and to the denial of its motions for a nonsuit and for a directed verdict. Exceptions overruled.

Joseph Madden and Roy M. Pickard, both of Keene, for plaintiff.

Jewett & Jewett and Theo. S. Jewett, all of Laconia, for defendant.

SNOW, J. Every person making a claim against a town on account of injuries received in the use of highways under P. S. c. 76, is required by section 7 thereof to file with officers of the town, within 10 days, a written statement setting forth, among other facts "the exact place where and the time when the injury was received." The object of this requirement is to enable the town authorities to examine the place shortly after the alleged injury, while the physical facts are unchanged, in order that they may intelligently consider the merits of the claim, and either adjust the damages or prepare a defense. Carr v. Ashland, 62 N. H. 665, 668, 669; Sargent v. Gilford, 66 N. H. 543, 544, 27 Atl. 306.

A statement is sufficient if it so designates the place that men of common understanding and intelligence can, by the exercise of reasonable diligence, and without other information from the claimant, find with reasonable certainty the place where it is claimed the injury was received.

Whether the statement is sufficient for this purpose is a question of fact to be decided at the trial. Carr v. Ashland supra, 62 N. H. 669; Horne v. Rochester, 62 N. H. 347, 350; Currier v. Concord, 68 N. H. 294, 295, 44 Atl. 386. This fact is ordinarily to be determined by the court, unless the court in its discretion submits the question to a jury. Carr v. Ashland, supra, 62 N. H. 668; Robin v. Bartlett, 64 N. H. 426, 428, 13 Atl. 645.

A finding upon a question of fact which is within the province of the trial court will not be reviewed if there is sufficient evidence upon which it can be based. Metcalf v. Weed, 66 N. H. 176, 178, 19 Atl. 1091; Dunklee v. Prior, 80 N. H.——, 116 Atl. 138, and cases cited. Therefore the only question raised by defendant's exceptions, so far as insisted upon, is whether there was evidence to support the finding of the court.

The statement filed made claim for an injury received while plaintiff was traveling, in the evening, upon the sidewalk on High street in defendant town, "at a point almost directly in the rear of the hotel barn, by reason of a dangerous embankment and defective railings." The plaintiff was injured while walking on the only sidewalk on High street, which at this point lies on a curve, with the sidewalk on the inside of the curve. The plaintiff was proceeding with the highway on her left and a railed embankment on her right. The hotel barn referred to sits on a lower level, and backs up to High street somewhat diagonally, its northeasterly corner touching the embankment so that its northerly end and its easterly side each form acute angles with the street. The accident occurred after she had passed 34.5 feet beyond the corner, at a point which she describes as on "the back...