Kandelin v. City of Ely

• Decision Date: 28 January 1910
• Docket Number: 16,410 - (212)
• Citation: 124 N.W. 449,110 Minn. 55
• Parties: HERMAN KANDELIN v. CITY OF ELY
• Court: Minnesota Supreme Court

124 N.W. 449

110 Minn. 55

HERMAN KANDELIN v. CITY OF ELY

Nos. 16,410 - (212)

Supreme Court of Minnesota

January 28, 1910

Action in the district court for St. Louis county to recover $25,600 for personal injuries and special damages. The case was tried before Hughes, J., and a jury which rendered a verdict in favor of plaintiff in the sum of $4,000. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.

SYLLABUS

Personal Injury -- Notice to City -- Departure.

Notice of personal injuries from a defective sidewalk, given under the provisions of section 768, R.L. 1905, held sufficiently to state the place and nature of the defect, and that there was no substantial departure therefrom in the complaint. Olcott v. City of St. Paul, 91 Minn. 207 distinguished.

A. J Thomas and W. G. Bonham, for appellant.

John R. Heino and Theo. Hollister, for respondent.

OPINION

BROWN, J.

Action to recover for injuries received bye plaintiff while passing along one of the sidewalks in the city of Ely. Plaintiff had a verdict, and defendant appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.

The only question presented by the assignments of error is the sufficiency of the notice given the city of the time and place of plaintiff's injury, as required by section 768, R.L. 1905. That statute provides that every person who claims damages from any city, village, or borough, for loss or injury from a defect in a street, road, or other public place, shall cause to be presented to its council, or other governing body, within thirty days after the injury or loss, a written notice stating the time, place, and circumstances thereof, and the amount of compensation demanded. It further provides that no action for such injuries shall be brought until a notice is given as therein required.

Two notices were given by plaintiff in the case at bar, and within the time allowed by the statute, only one of which need be referred to. The second notice was a mere enlargement of the first one, stating with greater particularity the nature of the injuries received, and, so far as pertinent to the question presented, was identical with the first one. That notice was as follows:

"To the Board of the City Council of the City of Ely, Minnesota:

"Take notice that on the 28th day of November, 1908, about 9:30 o'clock p.m., I received a severe bodily injury by reason of a defect in a certain sidewalk on the west side of 3rd avenue, in the city of Ely, Minnesota, at a point about 75 feet north of the intersection of the said 3rd avenue and of the Chapman street in the said city; that the defect or insufficiency which occasioned said injury consisted of a defect in a certain sidewalk plank, which had rotted and largely worn off and partially broken off, so that, while I was traveling on the said plank, the said plank broke and gave way, causing my foot to fall through the said sidewalk and my body to be thrown on and against the said sidewalk with such suddenness and great violence that my back was very seriously wrenched and injured, my right hip joint seriously sprained and otherwise injured, and the small bone inside of my right hip bone connecting hip joint and the bones of the leg was broken, my head was violently struck against the said sidewalk, causing a serious injury and depression on the right side of it close to the seat of the brain. I am informed and believe that in the injuries to my back and to my right hip joint my spinal cord and the sciatic nerve of the right leg have become so seriously involved as to make my said injuries extremely serious and permanent. I am also informed and believe that the injury to my head as aforedescribed is serious and permanent. All the hereinbefore described injuries were caused and occasioned solely by reason of the negligence and carelessness of the officials and employees of the said city of Ely, for whose acts the city is responsible. As compensation for the injuries that I have sustained, I demand the sum of ten thousand dollars."

The complaint...