145 Mass. 549 | Mass. | 1888
The St. of 1882, o. 36, provides that a notice shall not be deemed to be insufficient by reason of any inaccuracy in stating the cause of the injury, if it is shown that there was no intention to mislead, and if the party entitled to notice was not in fact misled.
The place of the injury is minutely described in the notice, and it is said, as a cause of the injury, that the way at that place was defectively constructed, and in a dangerous and unfinished condition. The plaintiff offered to prove that the way was imperfectly constructed, so that at times water would accumulate on its side and run over the way and gully out a channel across it, and that she broke through the ice into a hole or gully four or five inches deep, caused by such faulty construction of the way. The jury might have found that there was no intention to mislead, and that the defendant was not in fact misled by the notice. Suppose the plaintiff had proved her case as she opened it, and shown that, if one of the defendant’s officers had gone to the spot designated in the notice, he could have found a way defectively constructed so as to collect the water in winter and pour it over the travelled path, and a hole or gully four or five inches deep caused by such defective condition, would not a jury be justified, in the absence of any evidence to the contrary, in finding that the defendant was not misled ? The notice pointed to a particular place of the highway which it said was defectively constructed, and left in a dangerous and unfinished condition. It does not follow, from the fact that that particular defect was not mentioned, that the defendant was. misled; and a jury would be authorized to find, upon proof of the facts stated by the plaintiff, and in the absence of other evidence, that there was no intention to mislead, and that the defendant was not in fact misled. Fortin v. Easthampton, 142 Mass. 486. Canterbury v. Boston, 141 Mass. 215. Spellman v. Chicopee, 131 Mass. 443. Exceptions sustained.