Saunders v. City of Boston

• Citation: 46 N.E. 98,167 Mass. 595
• Parties: SAUNDERS v. CITY OF BOSTON.
• Decision Date: 26 February 1897
• Court: United States State Supreme Judicial Court of Massachusetts

167 Mass. 595

46 N.E. 98

SAUNDERS v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1897

The only question raised is as to the failure of plaintiff to give the statutory notice of the accident. She introduced evidence for the purpose of showing that she was incapacitated to give the notice, but the court ruled it insufficient.

COUNSEL

Hesseltine & Hesseltine, for plaintiff.

Samuel H. Hudson, for defendant.

OPINION

KNOWLTON, J.

The plaintiff cannot recover without showing that a notice of the time, place, and cause of the accident was given to the city in accordance with the requirements of Pub.St. c. 52, § 19, as amended by St.1894, c. 422. She did not give a notice within 10 days, as required by the statute, and the only question in the case is whether there was evidence that from physical or mental incapacity it was impossible for her to give one within that time. If the jury could properly find that it was impossible, her later notice might have been found sufficient under Pub.St. c. 52, § 21; otherwise she must fail in her action. It has repeatedly been held that a plaintiff cannot take advantage of this last provision of the statute if his physical and mental capacity would enable him to procure another person to give the notice in his behalf, even though he could not give it personally. May v. City of Boston, 150 Mass. 517, 23 N.E. 220; Mitchell v. City of Worcester, 129 Mass. 525; McNulty v. City of Cambridge, 130 Mass. 275; Lyons v. City of Cambridge, 132 Mass. 534. The plaintiff's injury was a sprain of her ankle, which caused her great pain, and for two or three weeks made it impossible for her to step on her foot. She had two children, and her husband was a poor man, who depended on his daily earnings to support his family. But she was able to tell her husband the cause and place of the accident when he came home on the night when it happened, and he went that evening to look at the place. She also told the doctor about it when he first came to visit her. The evidence tends to show that she sent to a lawyer a week or 10 days after the accident, and there is nothing to show that she could not have caused a notice to be given before the expiration of the 10 days as well as afterwards. She fails to sustain the burden of proof that rests upon her. Exceptions overruled.