Shea v. City of Lowell

• Decision Date: 23 January 1882
• Parties: Catherine Shea v. City of Lowell
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 187

Catherine Shea v. City of Lowell

Supreme Court of Massachusetts

January 23, 1882

Middlesex. Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant city. Answer, a general denial. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff testified, that, on the evening of December 25 1879, while passing along the sidewalk of Pawtucket Street her foot slid into a cavity in the uneven snow and ice on the walk, and she received the injuries complained of; that she was carried to a hospital, where she was confined for four months; and that, while in the hospital, on December 31 1879, a lawyer was sent to her by a friend, and, after she had communicated to him everything she knew relating to the time, place and cause of the accident, he wrote and signed as her attorney the following notice: "Lowell, December 31, 1879. To the clerk of the city of Lowell: You are hereby notified that Catherine Shea on the 25th of December, current, while passing along Pawtucket Street, in the city of Lowell, fell down and broke her hip in consequence of a defect in the highway." This notice was served upon the city clerk.

It appearing fro a plan put in by the defendant that Pawtucket Street was a mile long, the plaintiff offered to prove that Pawtucket Street as generally and commonly known was that part of said street which was thickly settled and travelled, and extended a distance of a quarter of a mile.

The plaintiff also offered to prove that, while she was in the hospital, she was called upon by a city officer who had charge of the matter of her injury, and who admitted to her that, from her written notice, he and the defendant had investigated the case and understood it; that, soon after the notice was given, said officer called upon a man who assisted the plaintiff home on the night of the accident, and the man pointed out to the officer the precise spot where the injury occurred. The judge ruled that the evidence was not admissible.

The plaintiff asked the judge to instruct the jury as follows "1. The written notice here introduced is prima facie admissible; and as to its sufficiency it may be adjudged by the jury according to the facts from and under which it was given and received, and from its surrounding circumstances. 2. On this point, it will be sufficient if the jury find that the law in this regard, upon the whole evidence, has been substantially and reasonably complied with. 3. In the absence of all inquiry or objection to the notice by the city clerk at the time it was served and a copy of it given back to the plaintiff's attorney by him, it may justly be presumed that he, acting for the defendant, received the notice as being sufficiently specific, and, making no objection, waived a more extended specification. 4. Under the whole evidence, if the jury find that the defendant had...