The opinion of the court was rendered by
Rеspondent brought suit against the defendant city to recover damages for personal injuries alleged to have been sustained by him upon the public streets of the city of Spokane, by falling into a trench that had not been filled in or protected, and which was maintainеd through the alleged negligence of the city. The case was tried by a jury, and a verdict was returned against the city for $1,750. After due course, judgment was entered for the above sum; and this appeal is from said judgment and the rulings of the court on the pleadings and during the progress of the trial. A demurrer was inter
The question involved arises under the provisions of the charter of the сity of Spokane. Section 220 provides:
“All claims for damages for personal injuries, or for injuries to property, alleged to have been sustained by reason of the negligence of the city, or of any officer, agent, servant or employee thereof, must bе presented to the city council within one month after any of such injuries shall have been received in the manner hereinafter in this section provided. . . . All claims for injury to person or property, and all notices of such claims herein required, shall be in writing and shall state the time when and the place where such injuries were received, and must also state the cause, nature and extent of the same, the amount of damages sustained thereby, and the amount for which the claimant will settle the same, and must be verified by his or her affidavit, in proрer form, to be true; and the refusal or omission to present such claim and give notice where notice is required, in the manner and within the time in this section required, shall be taken to be and shall he a waiver of any and all damages on account of such injuries, and shall be а bar to any srrit or action against the city to recover the same, or any part thereof.”
It is conceded that the claim was not made or the notice given within the time prescribed by the charter. This question Avas raised on the demurrer, upon an objection to thе testimony under the complaint, and on an objection to an instruction given by the court in relation thereto. The excuse offered by the plaintiff in his complaint for not filing the claim AA’ithin the time prescribed by the charter is as f oIIoavs :
“That plaintiff did not present his claim to sаid city council within one month, as provided for in'the amendment to the charter of the city of Spokane, for the reason*722 that the injuries received in said accident so crippled and disabled him that he was confined to his bed ten weeks from the date of said accident, and was by reason thereof unable to attend to the filing of his claim; that, owing to the nature of his injuries, it was impossible and unreasonable for plaintiff to state within one month the nature and extent of the injuries by him received, as it is required to be stated by said amendment of the city charter, and plaintiff only knew on the date of filing his claim that he would be lame for life as a result of his injuries.”
The validity of a charter provision of this kind was sustained by this court in Scurry v. Seattle,
It is earnestly contended by the respondent — and the great weight of authority is to the effect — that the question of whether or not the claimant was incapacitated from presenting his claim within the time required by the law is a question for the jury, and, being a pure question of fact, it must necessarily be so under our constitutiоn and laws. It is, however, contended by the appellant that the incapacity must be a mental incapacity, and not a physical one; that a plaintiff is not compelled to present his claim in person,-and that it is not usual for him to do so; that he may be physicаlly incapacitated, and yet be able to file his claim through a friend or attorney. This is no doubt, true in a measure; and yet it cannot be questioned that if, by reason of the injury, the mind of the injured person is so affected that it cannot act intelligently, it would be a good excusе for not presenting the claim within the time, and it might be that there would be such physical agony and pain as would equally prevent the doing of any business whatever by the plaintiff. We think the general rule is that -it must be shown that there is such physical or mental incapacity as to make it imрossible for the injured person to procure the notice to be served, and, if there is an actual incapacity, it makes very little difference in reason whether the incapacity is mental or physical. Up
It is said in Barclay v. Boston,
“In the present case the plaintiff did not introduce the best evidence upon the question whether her intestate wаs so incapacitated during the whole period of the ten days, and from all the testimony the court and jury must have been left in doubt in regard to it. But the question is not whether the best evidence was introduced, nor whether there was proof beyond a reasonable doubt, but whether there was any evidence from which it might fairly be inferred that she was incapacitated.”
This case was again before the supreme court of Massachusetts, reported in
“At the second trial of this cause, after the decision reported in Barclay v. Boston,167 Mass. 596 , the evidence tеnded to show that the plaintiff’s intestate died upon the twelfth day after her injury, and without herself giving the statutory notice; and that before the expiration of ten days from the time of the accident she became delirious, and remained delirious and unable to transact business until hеr death. If such were the facts, under the provisions of Pub. Sts. c. 52, § 21, her administratrix might give thei notice, and the presiding justice was*725 therefore wrong in ordering a verdict for the defendant, as a matter of law. The question of fact, if disputed, was for the jury.”
As we have before indicated, it is the аlmost universal holding that the fact is a question for the jury, hut that either mental or physical incapacity is a sufficient excuse for not filing the claim within the statutory time. The demurrer to the complaint, then, was properly overruled. The testimony on this proposition was confliсting, and, under the testimony, the jury, we think, were warranted in concluding that the plaintiff was incapacitated from presenting the claim for more than thirty days after the injury. The instruction which the court gave on this subject, and which is alleged as error, is as follows:
“You are further instructed that this action cannot fail because notice was not given to the city by the plaintiff within thirty days after the injury complained of was received, as required by the charter, if you find from a preponderance of the evidence in the case that the plaintiff, by reason оf the injuries which he received, if he received any injuries, was rendered incapable of serving such notice within that time, but served the same as soon as he was able and could ascertain the extent of his injuries.”
It follows from what we have said in relation to the complaint that the instruction was properly given.
It is contended by the respondent that the provision of the charter requiring the claimant to state the cause, nature, and extent of his injuries, and the amount of damages sustained thereby, is an unreasonable provision, for the rеason that it frequently occurs that the damages are not ascertainable within the thirty days, as in this case, where the testimony is to the effect that the plaintiff did not know that he was permanently injured until the day he presented his claim. But we think a reasonable
It also appears that there is a charter provision to- the effect “'that the city shall not be liable for any damages for injuries sustained ... in consequence of any street ... or sidewalk being out of repair, unsafe, dangerous or obstructed . . . unless actual notice of such defect or want of repair shall have been given to the superintendent of streets or the city council twenty-four hours before such injury is sustained.” It is contended that, inasmuch as such notice was not given, the plaintiff cannot recover. It seems to us that this provision of the charter, upon its face, is unreasonable, and that to hold it good would be to couple a remedy with a frequently impossible condition. The person. injured naturally could not give notice to the city before the injury, for in such an event he would he held to have had notice of the dangerous condition and would be debarred from recovery. And if notice had been given by' any one else, he would have no knowledge of such notice and would be unable either to plead or prove it. As was said by this court in Durham v. Spokane, ante, p. ---, in discussing the reasonableness of a charter provision somewhat of this character:
*727 “Manifestly, unless it is to be held that the city can by this form of enactment prevent a recovery against itself for personal injuries, it cannot by requiring claims for injuries to be presented within a given time prevent a recovery for troubles arising from such injuries which do not develop within the given time. But it is not the rule that a city may say whether or not it shall be held for personal injuries caused by its neglect of duty. Charter provisions of the character in question, whether enacted by the legislature, or, as in the present case, by the city itself, are to be upheld only so far as they are reasonable and tend to the due administration of justice. When such provisions so far depart from reasonableness as to amount' to a denial оf justice they are void.”
The right to prosecute a claim for personal injuries is a common law right, which has been sustained by this court in a long line of causes, extending from Sutton v. Snohomish,
There was no error committed by the court in giving or refusing to give instructions, or in the admission of testi
Keavis, C. J., and White, Fullerton, Hadley, Anders and Mount, JJ., concur.