May v. City of Boston

• Decision Date: 03 January 1890
• Citation: 150 Mass. 517,23 N.E. 220
• Parties: MAY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 517

23 N.E. 220

MAY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1890

COUNSEL

C. Sewall, for plaintiff.

Thomas M. Babson, for defendant.

OPINION

W. ALLEN, J.

As the plaintiff did not give the notice required by the statute until more than 3 months after she was injured, the burden was upon her to prove that, from physical or mental incapacity, it was impossible for her to give the notice until within 10 days of the time when it was given. Pub.St. c. 52, §§ 19, 21. We think that the court correctly ruled that there was no evidence to maintain that burden. The fact that she was confined to her bed does not show physical disability to give a notice in writing, signed by herself, or by some person in her behalf; and the inference from her own testimony that her head had troubled her ever since the injury, and that at times she had been dizzy and her mind visionary, and from other evidence that for the first 6 weeks she was at times delirious in the night-time, that she appeared worse after opiates were given her by the doctor's directions, and that she complained of her head frequently, would not be sufficient to prove that in her ordinary condition she had not sufficient mental capacity to give the notice. It is not necessary to go further, and to hold that the whole evidence showed affirmatively that the plaintiff had capacity to give the notice, and failed to give it only because she was informed that it was unnecessary. It is enough that the evidence is wholly insufficient to prove that it was impossible to give the notice. McNulty v. City of Cambridge, 130 Mass. 275; Lyons v. Cambridge, 132 Mass. 534; Mitchell v. City of Worcester, 129 Mass. 525. Exceptions overruled.