162 Mass. 51 | Mass. | 1894
No question is made as to the sufficiency of the notice in respect of the time and cause of the injury. It is contended that it is insufficient as to the place. The notice is meagre in that particular, but we do not think that it is so defective as to render it invalid. The place is described as on Central Park Avenue, and is further identified by the cause of the injury, which is stated as “ the root of a tree on the sidewalk.” It was said in Gardner v. Weymouth, 155 Mass. 595, 597, that a notice maybe inaccurate through insufficiency as well as actual mistake, and that the injured party may recover if there was no intention to mislead and the inaccuracy did not in fact mislead. It is conceded that there was no intention to mislead, and we cannot say that a description of the place of the accident as on the sidewalk of a certain street where there was the root of a tree might not, if correct, be of material assistance to the authorities in investigating the claim, and determining where
The mistake in regard to the name of the street is not surprising, when the nearness of the place of the accident to the junction of the two ways and the general direction of Central Park Avenue are considered.
The testimony of Neale was rightly admitted for the purpose of showing that the defendant was not in fact misled by the notice. Norwood v. Somerville, ubi supra.
The circumstances under which his conversations with the chairman of the selectmen, the superintendent of streets, and the chief of police took place were such as to prevent them from being mere casual conversations, which those officers might or might not have regarded; and the jury were rightly instructed that, if they believed Neale’s testimony, they would be justified in finding that the defendant was not misled by the inaccuracy of the notice.
The defendant further contends that the plaintiff was not in the exercise of due care. The plaintiff testified that she was “ walking along quietly,” or, as she said in another place, “ walking along comfortably,” on the sidewalk with Mr. and Mrs. Neale, when she tripped over something and fell. She testified that there was an electric light “ there somewhere,” and, when asked why she did not see the thing that she fell over if there was an electric light there, replied, “ I was talking with either Mr. or Mrs. Neale, and my face was turned away for one thing. I might not have looked at it. Another thing, I never supposed for a moment there was anything out of the way there.” On cross-examination she said, “ Had I supposed it was a dangerous place I could have seen perfectly well by looking, but supposing it was all right I did not look.” She also testified that she had previously avoided the sidewalk, and had walked in the street because of the loose stones and debris on the sidewalk and the fear she had of falling; but that a short time before she fell her attention had been called to the sidewalk as being in a proper condition to be walked over. Upon this evidence the question of the plaintiff’s due care was one preeminently for the jury. The plaintiff was not bound to exercise
We discover no error in the rulings or instructions, or refusal to rule as requested. Exceptions overruled.