McCabe v. City of Cambridge

| Mass. | Mar 3, 1883

Holmes, J.

The notice in this case was well served on the city of Cambridge when it was put into the hands of the assistant clerk in the city clerk’s office. The fact of leaving his assistant in charge of the office was a sufficient request to receive official communications properly to be delivered at that place, within the ordinance under which the assistant was appointed. And, on general principles, the assistant was so far the servant of the clerk and all one with him that a delivery to the assistant, under the circumstances, was a delivery to the clerk.

We also think that the notice was sufficient. It states that the plaintiff was injured by reason of a defective sidewalk, “ while walking on the right-hand side of Concord Avenue in Cambridge and coming towards the crossing of the Fitchburg Railroad.” As there was only one sidewalk on Concord Avenue, and as this was on the right-hand side going from Cambridge toward the railroad crossing, the notice necessarily imported that the plaintiff was walking from Cambridge toward the crossing, and that the defect was on the Cambridge or southerly side of the crossing. The defect, which was caused by the rotting out of a large plank gutter, was accurately described, and was of such a nature as to be easily identified. The defendant would hardly ask us to presume that there were several such defects in the neighborhood. Then follows the statement that the defective spot “ was located about one third of the way from the said railroad crossing to Walnut Street in said Cambridge.” There was no street of that name thereabouts. But the statement is controlled by the rest of that notice, which shows that the defect was on Concord Avenue, and the notice as a whole indicates clearly enough that the place of the accident was near the crossing. Thus we have the three facts of a peculiar and easily identified defect, the street and the side of the street upon which it was, and its proximity to a fixed point. Under these circumstances, as there was a street called Walden Street, which entered Concord. Avenue hard by, the reference to Walnut Street rather helps than harms. It is not quite idem sonans, but it suggests its own explanation, and made it easier rather than more difficult to apply the notice to the land. New trial ordered.