King v. City Boston

RUGG, Chief Justice. This is an action of tort to recover compensation for personal injures received by the plaintiff on September 16, 1933, on a public way in Boston. While walking on a sidewalk in front of 126 Englewood Avenue, she tripped and fell because a part of the sidewalk was higher than the level of the adjacent part. Both the plaintiff and the defendant introduced evidence on the negligence of the defendant, the due care of the plaintiff, and the damages suffered by the plaintiff. There was sufficient evidence to warrant a finding that there was a defect in the sidewalk at the place of the alleged accident. The plaintiff introduced in evidence a notice dated September 30, 1933, with return of service indorsed thereon, showing service upon the mayor and city clerk of the defendant on October 2, 1933. That notice stated that, on September 16, 1933, at about three thirty P. M., the plaintiff was injured by tripping and falling on the sidewalk in front of 126 Englewood Avenue 'where a cement square forming a part of the sidewalk was substantially higher than the level of the adjacent part of the sidewalk.' The residence of the plaintiff was not stated in this notice. Later in the trial the defendant put in evidence a notice dated September 25, 1933, whereby the plaintiff notified the mayor of the defendant of injuries received by her at precisely the same time and place set forth in the notice dated September 30, 1933, except that it was stated, 'where the cement square forming a part of the sidewalk had caved in and was depressed below the rest of the sidewalk,' and in other respects the notice of September 30, 1933, was similar to it. This notice did not state the residence of the plaintiff. The defendant also put in evidence a counternotice from the defendant to the plaintiff, stating that the notice of September 25, 1933, was not in conformity to law and was insufficient, and requesting forthwith a further written notice in compliance with the law. G.L.(Ter.Ed.) c. 84, § 20, as amended by St.1933, c. 114, § 3. This notice was received by counsel for the plaintiff on September 28, 1933. During the trial it was stipulated by counsel that there was no intention on the part of the plaintiff to mislead the defendant by reason of any insufficiency or inaccuracy in stating the name or place of residence of the plaintiff, or the time, place or cause of the injury, in the plaintiff's notices to the defendant of said injury, and that the defendant was not in fact misled by any such insufficiency or inaccuracy. After the return of the verdict and before the recording thereof, the trial Judge reserved leave, with the assent of the jury, to enter a verdict for the defendant if, upon the exceptions taken or the questions of law reserved, the Superior Court or the Supreme Judicial Court should decide that such verdict for the defendant should have been entered. After the return of a verdict in favor of the plaintiff, the defendant filed a motion in writing for the entry of a verdict in its favor under leave reserved. Thereupon, the trial Judge stated that the only question of law to be submitted to the Supreme Judicial Court is whether 'the notice given by the plaintiff to the defendant stating the name, but omitting to state the place of residence of the person injured,' was sufficient and in compliance with G.L.(Ter.Ed.) c. 84, as amended by St.1933, c. 114. The counsel acquiesced in that statement. Thereupon, the motion was allowed and a verdict was ordered to be entered in favor of the defendant. G.L.(Ter.Ed.) c. 231, § 120. The exceptions of the plaintiff bring the case here.