Lyons v. City of Red Wing
| Decision Date | 19 April 1899 |
| Docket Number | 11,546 - (98) |
| Citation | 78 N.W. 868,76 Minn. 20 |
| Parties | PETER LYONS v. CITY OF RED WING |
| Court | Minnesota Supreme Court |
Action in the district court for Goodhue county to recover $1,000 damages for personal injury. The case was tried before Crosby, J., and a jury, which rendered a verdict in favor of plaintiff for $90. From an order denying a motion for a new trial, defendant appealed. Affirmed.
Municipal Corporation -- Notice of Personal Injury -- Laws 1897, c 248.
Precise and absolute certainty is not required in the description of the place where a party is injured in his notice to the council of a municipal corporation required by Laws 1897, c. 248. The notice is sufficient in this respect if the place of the accident is so described therein that the proper municipal officers may, by reasonable diligence, identify it. Held, that the notice in this case was sufficient.
Municipal Corporation -- Service of Notice.
Method of serving such notice on the council indicated, and held that where, as in this case, the notice is presented to, and left with, the clerk having charge of the records and files of the council, at a meeting thereof, and is by him then presented and read to the council, the notice is properly served on, and presented to, the council.
Municipal Corporation -- Sidewalk -- Evidence of Condition -- Notice to City.
In an action for an injury caused by a particular defect in a sidewalk, evidence that the walk at or near the place was generally in bad condition is competent, as tending to prove notice to the city of the particular defect.
Physician -- Record of Injury -- Cross-Examination of Witness.
The surgeon who attended the plaintiff's injuries testified that he made no particular record of the case. He did not give it as his opinion that the injuries were serious. Held, that it was not error to sustain an objection to the question on cross-examination whether he did not always keep a record of cases of a serious character.
Trial of an Issue by Consent.
Rule that where parties have, by consent, tried an issue not made by the pleadings, they are bound by the result, followed.
Charge to Jury Indefinite -- Request for Specific Instruction.
Where an instruction to the jury is indefinite, the giving of it is not ground for exception. The remedy is to ask for a further and more specific instruction.
Defective Sidewalk -- Duty of Traveler Having Knowledge of Defect.
The mere fact that a person knows that a sidewalk is in a defective and dangerous condition does not, as a matter of law, impose upon him the duty of abandoning the use of the street, or else using it at its peril. He is bound in such a case to use ordinary care, and no higher degree of care; that is, he is bound to use reasonable care, in view of all the circumstances of the case, including his previous knowledge of the condition of the walk.
J. C. McClure, for appellant.
F. M. Wilson, for respondent.
Action to recover damages for a personal injury sustained by the plaintiff by a defective sidewalk of the defendant city. Verdict for the plaintiff for $90, and the defendant appealed from an order denying its motion for a new trial.
1. The defendant's assignments of error 1, 2, 3, 4, 5, 6 and 11 may be considered together, as they relate to the sufficiency and service of the notice of the plaintiff's injury, and his claim for compensation therefor, as required by Laws 1897, c. 248. If the notice and claim were sufficient in substance, and were properly served or presented to the city council, all of the assignments of error now under consideration are without merit.
That a notice in writing of the plaintiff's injuries, and his claim for compensation therefor, was presented to the city council within 30 days next after his injury, and considered by the council, is admitted. The only objection made to the notice is that it is too indefinite as to the description of the place where the injury was received. The object of the statute in requiring that the notice should state the place where the injury occurred is to furnish the municipal officers with such definite information as will enable them intelligently to investigate the facts as to the alleged injury. But precise and absolute certainty is not required. The notice is sufficient in this respect if the place of the accident is so described therein that the proper municipal officer may, by reasonable diligence, identify it. Harder v. City of Minneapolis, 40 Minn. 446, 42 N.W. 350; Elliott, Roads & S. 475; Tuttle v. Town, 50 Conn. 496; Spellman v. Inhabitants, 131 Mass. 443. The notice in question, after stating that the plaintiff was injured while walking along the sidewalk on the west side of South Park street, in the city of Red Wing, and describing the cause, nature and extent of the injury, concludes with these words:
"That the place of my said accident was about seventy-three feet north of the fence on the north line of the property of John Woodcock, adjoining said South Park street."
The notice is sufficient, for it identifies the place of the accident with substantial certainty.
The defendant further claims that the notice and claim were not legally served on, or presented to, the city council. The statute requires that the injured party, as a condition precedent to the bringing of an action, shall, within 30 days after his injury, give notice thereof and present his claim for compensation to the city council or other governing body of the municipality. Laws 1897, c. 248; Bausher v. City of St. Paul, 72 Minn. 539, 75 N.W. 745; Doyle v. City of Duluth, 74 Minn. 157, 76 N.W. 1029. How the notice and claim shall be given and presented to such governing body the statute does not direct. There is, however, no practical difficulty in giving to the council the required notice. It must be done in an orderly and practical way. It would be unseemly to invade the council chamber, and interrupt the proceedings of the council, by attempting to serve the notice upon the members thereof or upon the presiding officer. It is sufficient if the notice and claim reach the council or governing body of the municipal corporation in due time, although it passes through the hands of others. Elliott, Roads & S. 476. If the council is not in session when the notice is served, it may be directed to the council, and left with the clerk or other officer who has charge of the records and files of the council, with a request annexed that it be laid before the council at its next meeting. This, or some similar method, is the only practical way of serving the notice on the council in cases where it is not in session during the 30 days within which the notice must be given. If the notice is to be presented to the council when it is in session, the orderly course of procedure is to deliver it to the clerk or other officer having charge of the records of the council for its consideration.
In this case the evidence tends to show that the plaintiff delivered the notice to the clerk for the council at a meeting thereof, and that the clerk presented and read it to the council, and the matter was referred to the committee on claims. Such was the undisputed evidence, except the recollection of the clerk was that the notice was given to him prior to the meeting of the council. The discrepancy is immaterial.
2. The plaintiff testified that where the accident happened the sidewalk was in a defective...
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