57 Ind. App. 689 | Ind. Ct. App. | 1914
Appellee recovered a judgment against the city of Port Wayne for personal injuries alleged to have been received uy him on account of a defect in one of the streets of such city.
The attention of the court has been called to only two eases which, as claimed by appellee, announce the doctrine that the proof as to the time of the injury need not conform strictly to the date stated in the notice. Sullivan v. City of Syracuse (1894), 77 Hun 440, 29 N. Y. Supp. 105; Murphy v. Seneca Falls (1901), 57 App. Div. 438, 67 N. Y. Supp. 1013. In the ease last cited it was held that a notice stating that the injury occurred “on or about the 10th day of April, 1897. ’ ’ was a sufficient compliance with the statute where the evidence showed that the injury occurred on April 10, 1897. This ease does not hold that the notice was sufficient to warrant the introduction of evidence showing that the injury occurred on any day other than such 10th day of April, and it is not therefore in conflict with the cases which hold that evidence as to the time of the injury must conform strictly to the date stated in the notice. The case of Sullivan v. City of Syracuse, supra, sustains appellee’s position. In that case the notice stated that the injury occurred on the 5th day of August, 1891, and the evidence showed that it happened on the evening of the 4th. Under
In view of the previous holdings of the Supreme Court and of this court on the subject, and in view of the great Aveight of authority, we are constrained to hold that the notice, to be sufficiently definite must, as a general rule, give the date upon which the injury occurred, and that the evidence must conform to the date stated in the notice. However, a ease might arise where, the injury occurred so near midnight of a given day as to render it uncertain upon which of two days the injury actually occurred. In such a case, proof that the injury occurred within a short time before or after midnight, might be held sufficient as a matter of law to support a notice stating that it occurred on either of such days.
"We have no hesitancy in holding that proof that an injury occurred on the 28th day of a given month does not conform to a notice stating that it occurred on the 18th day of such month. The notice introduced in evidence in this ease does not sustain the allegation of the complaint in respect to the notice served upon the city, and for this reason the verdict is not sustained by the evidence and appellant’s motion for a new trial should have been sus
Note. — Reported in 105 N. B. 949. As to liability of municipal corporation for defect in or want of repair of street, see 103 Am. St. 257. As to necessity of notice of claim and cause of injury from defects or obstructions in street generally, see 20 L. R. A. (N. S.) 757.