269 Mass. 571 | Mass. | 1930
The plaintiff was injured by falling on a sidewalk on Broad Street, a public way in the defendant city. She duly notified the defendant in writing of the injury. At the close of the evidence the defendant filed a motion for a directed verdict on the grounds that the notice was invalid and insufficient in stating the cause of injury; that there was no evidence from which it could be found (1) that there was no intention on the part of the plaintiff to mislead the defendant, and (2) that the defendant was not in fact misled thereby. The notice recited that “The cause of my being so hurt and injured was as follows: At said time and place, owing to the presence of a substantial depression or hole in said sidewalk, I slipped on the ice in said hole and broke my leg.”
The plaintiff testified that at the place described in the notice “the snow was pretty well cleared off the sidewalk and that there was a large kind of. irregular place where the tar was worn away, causing a depression and that inside the depression, the edges thereof were ragged, irregular and jagged; and her heel got caught and threw her and her leg was broken; the depression was about four feet round and in its widest place, was about a foot wide and about two inches deep . . . that the hole or depression was a sunken part in the sidewalk . . .; that the tar in the depression had been all worn away exposing the dirt and that there was no concrete or tar in the depression.” She further testified that snow or ice had nothing to do with the accident and that she did not slip on the ice.
If the sidewalk was defective and such defect caused her to fall and her injury was in part attributable to the defect, the defendant might be held liable even if the ice may have contributed in part to her fall. Newton v. Worcester, 174
It could have been found that there was no intention on the part of the plaintiff to mislead the defendant in stating the cause of the accident, and that the defendant was not misled thereby. It follows that the jury could have found that the plaintiff had shstained the burden of proof resting on her to show that the defendant was not misled by the description in the notice as to the cause of the injury. Naze v. Hudson, supra and cases cited. Messner v. Springfield, 261 Mass. 142.
As no exceptions were taken to the judge’s charge, it is to be assumed that the instructions were full and accurate. The case is before us upon a report of the trial judge who refused to direct a verdict for the defendant.
The entry must be
Judgment for the plaintiff on the verdict.