Naze v. Town of Hudson

• Decision Date: 03 December 1924
• Citation: 145 N.E. 468,250 Mass. 368
• Parties: NAZE v. TOWN OF HUDSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 368

145 N.E. 468

NAZE

v.TOWN OF HUDSON.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 3, 1924.

Report from Superior Court, Middlesex County; E. B. Bishop, Judge.

Action under G. L. c. 84, § 15, by Elizabeth J. Naze against the Town of Hudson, to recover for personal injuries sustained by falling on a sidewalk. Verdict directed for defendant, and case reported. Exceptions sustained, and new trial granted.

J. J. Shaughnessy, of Marlboro, for plaintiff.

R. E. Joslin, of Boston, for defendant.

CROSBY, J.

This is an action under G. L. c. 84, § 15, to recover for personal injuries received by the plaintiff by reason of falling upon a sidewalk in the defendant town. She testified that as she was going along she struck her foot against a stump and stumbled and fell on the ice; that the ice was in a hole in the sidewalk near the stump and a patch had been put over the hole; that the stump was about four or five inches higher than the sidewalk; that it was in the gravel or sand part of the sidewalk alongside the concrete; that a root of the stump ran into the edge of the concrete and raised the latter; that it was alongside the hole; that water always accumulated in this place when it rained, and that sometimes after a heavy rain there were three or four inches of water in the hole; that at the time of the accident there was a little snow and ice on the walk; that she had noticed the stump and hold there before; that she did not look for it that morning and did not think about it. On redirect examination she testified that the stump was partly covered with snow which prevented her seeing it. In answer to inquiries by the presiding judge, she testified:

‘The tree itself was on the grass but the roots extended into the sidewalk. The stump was in on the concrete right in the edge of the sidewalk. ‘I struck my foot on the stump of the tree and stumbled and fell.’'

The notice served on the defendant described the cause of her injuries as follows:

‘Her said fall was caused by the defective condition of said sidewalk and ice having formed thereon. The condition of the said sidewalk was such where she fell as to cause the water to accumulate thereon so as to make the place dangerous when ice formed thereon.'

[1] Under G. L. c. 84, § 18, the notice is not invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if there was no intention to mislead and the defendant was not in fact misled thereby. The burden of proof is on the plaintiff to show that there was no intention to mislead and that the defendant was not misled by the notice. Bowes v. Boston, 155 Mass. 344, 29 N. E. 633,15 L. R. A. 365;Tobin v. Brimfield, 182 Mass. 117, 65 N. E. 28;McCarthy v. Stoneham, 223 Mass. 173, 111 N. E. 698.

[2] We are of opinion that upon the testimony and the reasonable inferences to be drawn therefrom, the jury would have been justified in finding that there was no intention on the part of the plaintiff to mislead the defendant and that it was not in fact misled. A witness called by the plaintiff testified that soon after the accident he went with the defendant's superintendent of streets and his foreman to where it occurred, and showed them the place where he picked the plaintiff up after she fell ‘right beside the stump.’ A verdict for the defendant could not rightly have been directed on the ground that the notice was insufficient. Conners v. Lowell, 158 Mass. 336, 33 N. E. 514;Fuller v. Hyde Park, 162 Mass. 51, 37 N. E. 782;Carberry v. Sharon 166 Mass. 32, 43 N. E. 912;Winship v. Boston, 201 Mass. 273, 275, 87 N. E. 600

We need not decide whether the notice would have been sufficient before the enactment of St. 1882, c. 36, and St. 1888, c. 114, now embodied in G. L. c. 84, § 18. See Shea v. Lowell, 132 Mass. 187;McDougall v. Boston, 134 Mass. 149;Cronin v. Boston, 135 Mass. 110;Roberts v. Douglas, 140 Mass. 129, 2 N. E. 775, and other cases relied on by the defendant.

[3] It is contended by the defendant that there was a variance between the notice and the evidence as to the cause of the injury, which is fatal to the plaintiff's case. The notice recites that the plaintiff's fall was due to a defective condition of the sidewalk and ice formed thereon. She testified that her foot struck against the root of the stump and then she slipped on the ice and fell. It is plain that it could not have been ruled that there was a variance, as the defendant contends.

[4] The allegations in the declaration are that the plaintiff was injured by slipping upon ice which had...