City of Cripple Creek v. Loveless

70 Colo. 482 | Colo. | 1921

Mr. Justice Allen

delivered the opinion of the court.

This is an action for damages for pérsonal injuries. The complaint alleges, in substance, that the defendant, a municipal corporation, maintained a sidewalk along the northerly side of a certain avenue; that the sidewalk was in a dangerous and unsafe condition, and that by reason thereof the plaintiff was injured while passing along the same. A trial to a jury resulted in a verdict for plaintiff. A judgment was entered accordingly. The defendant has sued out this writ of error.

The plaintiff in error, defendant below, contends that plaintiff’s notice was insufficient and defective. The notice in question is that which is required by section 6661 E. S. 1908 which reads, in part, as follows:

“No action for the recovery of compensation for personal injury or death against any city * * * or any town, on account of its negligence, shall be maintained unless written -notice of the time, place and cause of injury is given to the clerk of the city, or recorder of the town. * * *”

The objection to plaintiff’s notice relates only to its description of the place of the injury. In this respect the notice reads as follows: “On the north side of East Carr Avenue, between First and Second Streets in your city.” It is not shown that this description is inaccurate, but the objection is that it does not point out more specifically the place of the injury. It covers a space of one city block. In City of Lincoln v. O’Brien, 56 Nebr. 761, 77 N. W. 76, a notice was held sufficient, although a space of two city blocks was described. Under the circumstances existing in the instant case, we deem the notice in question sufficient. 28 Cyc. 1456. City of Pueblo v. Babbitt, 47 Colo. 596, 108 Pac. 175.

It is claimed that there was a fatal variance between pleading and proof as to the place of the accident. The allegation is: “On the northerly side of said East Carr Avenue, between First and Second Streets, and at or near 127 East Carr Avenue.” The proof corresponds with this allegation exactly, except as to the house number. The variance was immaterial. 28 Cyc. 1475; 31 Cyc, 707, There was substantial correspondence of proof to allegation.

Other contentions relate to the sufficiency of the evidence to support the verdict. There is no error' in the record in this connection, nor as to any other matter.

The judgment is affirmed.

Mr. Justice Teller, sitting for Mr. Chief Justice Scott, and Mr. Justice Whitford concur.