Madden v. City of Springfield

• Citation: 131 Mass. 441
• Parties: Mary Madden v. City of Springfield
• Decision Date: 22 October 1881
• Court: United States State Supreme Judicial Court of Massachusetts

131 Mass. 441

Mary Madden v. City of Springfield

Supreme Court of Massachusetts

October 22, 1881

Hampden. Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant city. Answer: 1. A general denial. 2. That no notice of the injury was received by the defendant as required by law. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows It appeared that, on April 23, 1879, at noon, the plaintiff who was then six years and nine months old, fell, in consequence of a defect in Main Street in the defendant city at a point where two rails in the street railway unite, and broke her arm.

There was no evidence that her mind was affected by the accident, or that there was any substantial difference in her mental or physical condition from the day of the accident to June 13 following.

On that day the following notice was served upon the defendant's city clerk: "To the city of Springfield. Please take notice that, on the 23d day of April, A. D. 1879, Mary Madden, my daughter, received an injury by reason of a defect in the highway in said Springfield, known as Main Street, upon the crosswalk therein between Elm and Sanford Streets; that said Mary Madden was incapable, from physical and mental incapacity, of giving notice within an earlier period, and I hereby give this notice in behalf of said Mary Madden, being thereto duly authorized. John Madden. Springfield, Mass., June 13, 1879."

The plaintiff asked the judge to rule that, upon the evidence, it was not necessary that the plaintiff should give any notice to the defendant. The judge refused so to rule; ruled that the plaintiff could not recover; and directed the jury to return a verdict for the defendant. If the rulings were correct, the verdict was to stand; otherwise, a new trial was to be ordered.

Judgment on the verdict.

E. B. Marynard, for the plaintiff.

N. A. Leonard & G. Wells, (T. M. Brown with them,) for the defendant.

Morton, J. Lord & Devens, JJ., absent.

OPINION

Morton, J.

The statute provides that "any person" injured by a defect in a highway, shall within thirty days thereafter give notice to the town, city, place or persons obliged by law to repair the same, of the time, place and cause of the injury such notice is a condition precedent to the right to maintain an action for the injury. St. 1877, c. 234. ...