128 Mass. 318 | Mass. | 1880
The St. of 1877, e. 284, materially changed the law relating to the liability of cities and towns for injuries from defects in highways. The change which bears on the plaintiff’s action is wrought by the provisions of § 3, which make it a condition precedent to the maintenance of an action for such injury, that the person injured shall within thirty days thereafter give notice to the county, town, place or persons by law obliged to keep the highway in repair, of the time, place and cause of the said injury or damage. § 4 provides that the notice, in the case of a city, may be given to the mayor, city clerk or treasurer, or to any police officer.
It is plain that the purpose of these provisions is to render it, as nearly as may be, impossible for towns and cities to be imposed upon by fraudulent claims and suits for injuries alleged to have .been sustained long before any demand for compensation or notice of any kind has been given to the municipality, and under such circumstances that the city or town has no means of showing whether the alleged defect actually existed, or whether the alleged injury was actually sustained. In order that this purpose of the statute may be effected, it is necessary that in the case of a city, where the notice may be given to any police officer, as well as to the mayor, clerk or treasurer, the notice itself should show affirmatively, either by a form of words, or by the circumstances under which it is given, that it is intended by the party giving it as a notice for the purpose of fixing his right of action. It is not notice to the city if, in a casual conversation, the person injured narrates to his neighbor, who chances to be a police officer, the facts connected with the accident by which he was hurt, even though the narration includes a statement of the time, place and cause of the injury. Else, the statute might have made a knowledge of the facts by the town or city, within thirty days after they occurred, the condition precedent to the right of action. If the narration is made to the officer in his official character, his attention being officially called to it, the question might be raised whether, under all the circumstances, the notice was sufficient under the statute.
In the case at bar, the evidence relied on as proof of notice was a conversation at the plaintiff’s house the day following the injury, testified to by one Neal. He was assistant marshal of
We are of opinion, therefore, that the judge of the Superior Court erred in refusing to instruct the jury that there was no evidence that the defendant was duly notified under the statute.,
JExceptions sustained.