Goodwin v. City of Fall River, 228 Mass. 529

228 Mass. 529 | Mass. | 1917

Pierce, J.

This is an action to recover damages for personal injuries sustained by the plaintiff by stepping into a hole in the sidewalk, while walking along South Main Street, in the city of Fall River, a public highway which the defendant is bound to keep in repair so that it may be reasonably safe and convenient for travellers. The accident occurred on the evening of March 16, 1914, between seven and seven thirty o’clock. The notice of the claim for injuries sustained was served upon the city of Fall River on April 18,1914, thirty-three days after the accident. The question presented is, whether the physical or mental incapacity of the plaintiff was such that he could not give the notice himself, or by. any ordinary means at his command procure the notice to be given on his behalf, within thirty days of the accident. R.L. c. 51, §§ 20, 21. Saunders v. Boston, 167 Mass. 595. Barclay v. Boston, 167 Mass. 596.

The plaintiff’s injury was a broken ankle, a. Potts fracture. He testified that he lived in Pawtucket, Rhode Island; that he came to Fall River on the afternoon of the accident; that he had to borrow money to come to Fall River; that he was out of work at the time and was looking for a job; that when he was hurt he was walking along one of the streets in the southern part of the city, but did not know its name; that the night was dark; that you could hardly see your hand in front of you; that it was so dark he could not see where he was going; that'he did not know the points of the compass in Fall River or in which direction he was going; that he was being taken by one Greenwood, whom he had met at five o’clock that afternoon, to a moving picture show; that on the way they were joined by several other men whom he did not know; that after the accident he went two or three blocks along to the moving picture show; that he stayed there ten or fifteen minutes; that his foot swelled up and burst his shoe lace; that he could not stand the pain; that he hobbled down the steps until he got to the street; that Greenwood took him on his back and carried him to his (Greenwood’s) home where he stayed that night; that Dr. Perron attended him that night; that the next morning he went home to Pawtucket with Greenwood; that Dr. Dunbar sent him to a hospital in Providence, Rhode Island, where he remained eight days; that he then returned home and remained in the house until the evening of April 17; that on that evening he went to see a lawyer in Providence; that on April 18 he went to see a lawyer in Fall River, with his youngest sister; that he came with a crutch and stick and the plaster cast on his leg just the same as when he came out of the hospital; that he went to Mr. Cummings’s office and at that time was not able to tell where he got hurt; that his sister located Greenwood, who came to the lawyer’s office; that he did not know Greenwood’s address at all and was unable to send any letter to him.

The plaintiff further testified that he was not well acquainted with Greenwood, whose uncle was married to his sister; that he had met Greenwood only once before in Pawtucket when Greenwood wrote down his residence on a piece of paper, which the plaintiff brought with him when he first came to Fall River; that Dr. Dunbar attended him after he came from the hospital twice or three times; that two doctors treated him in the hospital; that one came to see him several times a day; that the nurses were giving him his meals and attending to his physical wants; that he had six sisters, two of whom were unmarried; that his youngest sister came to his house pretty often; that it was not once a day, — he could not tell how often; that there was a nurse looking after his wife, who was an experienced nurse; that she was there at the house all the time after he came from the hospital and nursed him also; that his wife’s sisters worked but came sometimes to see his wife; and that they were there when he was home about once a week; that he told them how he got hurt.

In addition, the plaintiff offered to show that he had no means to employ anybody, or to pay anybody, and there was nobody at hand available to give any notice or to find out for him where the accident happened; and he further offered to show that he was unable to go out of the house, that he was unable to point out to anybody the place where he was hurt or to give any directions to go and find out, and that he did not know the place and could not give any description of it to anybody.

On motion the presiding judge directed a verdict for the defendant. We think the direction was given rightly. The physical or mental incapacity which enlarges the period of limitation within which notice as a condition precedent to a right to maintain an action must be given, is an inability of the person injured to give the notice himself or through another which results from a loss of the faculties of the mind, or from a lack of power to use the mind because of the loss or impairment of the organs of the body. Mere physical inability to move or to be moved about or to write are not evidence of mental or physical incapacity. Mitchell v. Worcester, 129 Mass. 525. McNulty v. Cambridge, 130 Mass. 275. Lyon v. Cambridge, 136 Mass. 419. Ignorance of facts upon which the ability of the person injured may depend to give notice is not evidence of mental or physical condition; nor is the want of means to employ assistance to give the notice or to find out where the accident happened evidence that the plaintiff was incapable of giving the notice within thirty days because of mental or physical incapacity. The evidence which the plaintiff offered in proof of mental incapacity, as described above, was excluded rightly.

On the facts this case cannot be distinguished from Lyon v. Cambridge, supra.

Exceptions overruled„