Nagle v. City of Billings

Submitted September 23, 1927. Personal Injuries — Cities and Towns — Defective Sidewalks — Notice to City — When Sufficient. Personal Injuries — Cities and Towns — Defective Sidewalks — Notice to City — Purpose of Statute. 1. The purpose of section 5080, Revised Codes 1921, requiring the giving of notice to a city or town of an injury received because of a defect in a sidewalk as a condition precedent to liability for damages, is to give the city an opportunity to have the place where the accident occurred examined, consult witnesses and to enable it to settle the claim if the investigation discloses a legal liability on its part. Same — Notice to City of Personal Injury — When Sufficient. 2. When a notice of the nature of the above so designates the place where a pedestrian was injured because of a defect in the sidewalk that the officers of the city or town, as men of common understanding and intelligence, can by the exercise of reasonable diligence find the place, it sufficiently complies with the provisions of section 5080, supra. Same — Case at Bar. 3. Held, on appeal by plaintiff in a personal injury action against a city from an order granting defendant city a new trial on the ground that the notice served by plaintiff on defendant in pursuance to section 5080, supra, was insufficient, that the notice, stating that the injury occurred ""at the corner of Fifth Avenue and 32nd street"" describing the defect in a gutter covering which caused plaintiff to be thrown to the ground, not, however, setting forth at which one of the four corners of the street intersection the particular gutter covering could be found, was sufficient under the rule stated in paragraph 2 above, and that the court erred in granting a new trial. Same. 4. Evidence held, not to sustain the contention of defendant city that all gutter coverings at the intersection of the two streets, one of which coverings caused plaintiff to be thrown, were in the same condition at the time mentioned in plaintiff's notice to the city, and that therefore the assertion of defendant 1. See 19 R.C.L. 1040. 2. Sufficiency of notice of claim against city, with respect to description of place of accident, see note in 18 Ann. Cas. 994. See, also, 19 R.C.L. 1044. that an inspection of all of them would not have enabled the city's investigator to discover the one referred to in plaintiff's notice and hence the notice should be held insufficient, is baseless.