307 Mass. 425 | Mass. | 1940
This is an action of tort to recover for personal injuries alleged to have been sustained by the plaintiff on or about February 1, 1934, when she fell on a public way where there was an accumulation of snow and ice. We assume, without deciding, that it could have been found that a defect existed at the place where she fell and that it was the cause, in part, of her injuries, and that an alleged notice of the time, place and cause of the injury was given seasonably. It is agreed that the defendant did not send any notice to the plaintiff that her alleged notice was defective. See G. L. (Ter. Ed.) c. 84, § 20, in the form appearing in St. 1933, c. 114, § 3. See now St. 1939, c. 147. The trial judge directed a verdict for the defendant on the ground that the plaintiff’s notice was defective. The only question in the case relates to the sufficiency of the notice in stating the cause of the injury.
The plaintiff, as a prerequisite to her right to recover, was required by § 18 of said c. 84 in the form appearing in St. 1933, c. 114, § 1, to give a seasonable notice to the defendant of the cause of her injury, but "Such notice shall not be invalid or insufficient solely by reason of any inaccuracy in stating the . . . cause of the injury, if it is shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby.” Said § 20, so far as material, provides, in substance, that a defendant shall not avail himself in defence of any omission to state in such notice the cause of the injury, unless, within five days after receipt of the notice seasonably given, a counternotice is given that the notice is insufficient, together with a request that forthwith a written notice be given in compliance with law. The only, statement in the notice in question as to the cause of the injury was that it "was an unnatural accumulation of snow and ice at the place where the injury was sustained . . . .”
Where, as here, the cause is definitely stated, there is no room for a contention that it means anything more than it
The notice, on its face, discloses no inaccuracy in stating the cause of the injury. But if it be assumed that the notice was sufficient to give rise to a cause of action, notwithstanding its defects (see Gardner v. Weymouth, 155 Mass. 595, Booling v. Malden, 258 Mass. 570, 572, Crowell v. Malden, 273 Mass. 456, 459, 460), then the burden was upon the plaintiff to show that the defendant was not in fact misled by the statement of cause given in her notice. There is nothing in the record to show that it was not. There was evidence that it was misled, and if this evidence, which is set out in the bill,of exceptions, were disbelieved, there was no evidence to sustain the burden of proof resting on the plaintiff. , „ ,. 7 7
„ ,. 7 7 Exceptions overruled.
