258 Mass. 570 | Mass. | 1927
This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff by reason of a defect in the highway. G. L. c. 84, § 18. There was testimony tending to show that the plaintiff on the day in question was injured on a sidewalk in the defendant city because of slipping on a thin coating of ice covering a stone, which extended into the sidewalk from two to three feet and to a height of two or three inches.
Within ten days after the injury, notice in writing was given to the mayor of the defendant by a brother-in-law of the plaintiff setting out as the cause of the accident “falling on an icy sidewalk on Belmont Street,” and making no reference to the stone. A reply to that letter was sent two days later by the city solicitor of the defendant, in which it was said: “Under the provisions of the statute cities are not now liable for injuries received by reason of slippery sidewalks. At one time a different rule prevailed but for fifteen or twenty years this statute has been in force.” Thirty days after the accident, notice stating the stone as the defect with snow and ice as a contributing cause was served on the defendant. A police officer of the defendant testified that on the day after the accident he examined the sidewalk and found it covered with snow and ice and very slippery; that no stone could be seen; and that it was all covered with snow and ice.
It is manifest from the letter of the city solicitor that he construed the notice as pointing out ice as the sole cause of the injury and that, therefore, there could be no recovery. Both in his construction of the notice and in his conclusion from it he was right. If it be assumed that this letter of the city solicitor was the equivalent of a notice by the defendant that the notice of the plaintiff theretofore given was insufficient, no better notice was given by the plaintiff within the time permitted by G. L. c. 84, § 20. If it be assumed that the first notice given by the plaintiff was sufficient to give rise to a cause of action in her behalf, notwithstanding its defects, (See Gardner v. Weymouth, 155 Mass. 595) then the burden was upon her to show that the defendant was not in fact misled by the wrong statement of cause given in her notice. She did not sustain that burden of proof. The letter of the city solicitor and the testimony of the police officer show that the defendant had no information whatever touching the stone as the cause of the injury within the time required by law. If this testimony were believed, it showed that the defendant was misled. If it were disbelieved, there was no evidence to sustain the burden of proof resting on the plaintiff to show that the defendant was not misled. In either event she is not entitled to recover. The ruling directing a verdict for the defendant was right. The case at bar on this point is the converse of Naze v. Hudson, 250 Mass. 368. Other defences urged need not be considered.
Verdict to stand.