I am unable to concur in an affirmance of the judgment appealed from, but think the same should be reversed because of the admission upon the trial of evidence of serious injuries alleged to have been sustained by plaintiff which were not in any way set forth or described in her notice of claim filed under the statute.
This action was brought to recover for personal injuries claimed to have been suffered by plaintiff through the negligence of defendant in allowing a bridge upon one of its highways to become'defective. There was sufficient' evidence upon the questions of defendant’s negligence and plaintiff’s freedom from contributory negligence to support the judgment, and I pass immediately to the consideration of the question above suggested.
Section 16 of the Highway Law (Laws of 1890, chap. 568) provides : “ Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town. No action shall be maintained against any town to recover such damages unless a verified statement of the cause of *319action shall have been presented to the supervisor of the town within six months after the cause of action accrued.”
Plaintiff’s verified statement filed under the foregoing statute, so far as it relates to her injuries, reads: “ That by reason thereof (the accident) the claimant was badly bruised and suffered a severe injury to her right leg at and about the knee, sustained a severe shock, was made sick, suffered much pain, is so far disabled that she is compelled to lie in bed * * * to her great damage in the sum of one thousand dollars.”
Upon the trial, in spite of the objections interposed in due time and form by the defendant, plaintiff was allowed to give evidence that she had sustained an intercapsular fracture of the hip. These objections taken upon the trial and now urged upon this appeal present the two questions, first, whether plaintiff’s notice did fairly cover and include the alleged injury to her hip, and, second, whether if it did not, it was still permissible for her to give evidence of such injury.
It does not appear to be seriously urged by respondent’s counsel that the notice served by plaintiff did really and clearly specify any such injury as that mentioned. We do not think that upon any fair construction of the language used it did either specifically point out such an injury or by general language include it. The words that plaintiff “ sustained a severe shock, was made sick, suffered much pain, is so far disabled that she is compelled to lie in bed,” even if they are not exclusively predicated upon the injury to her knee mentioned, still are not appropriate to describe the breaking of the hip. The statement that she was “ badly bruised ” does not naturally convey the idea of a broken bone or joint, and the further statement that she “ suffered a severe injury to her right leg at and about the knee,” not only does not include the injury to the hip, but excludes the idea of any further injury such as the breaking of the bone at the hip on the same leg.
Respondent’s counsel, however, argues that even though the foregoing construction of her notice be adopted, it was still sufficient.
He does not base this contention upon any claim that a statement of her cause of action called for by the statute should not include an enumeration of the injuries alleged by her to have been received: Again, we do not see how he could do otherwise than concede that *320it should include such a statement of injuries. In its simplest form a statement of her cause of action would set forth default and negligence of the defendant with resulting injuries to herself from which damages flowed.
Counsel, however, calls to our attention various decisions of the courts which he insists formulate the rules that a reasonable construction is to be put upon a .statute of this kind having reference to the object sought thereby to be effected, and, as especially bearing upon the precise point under consideration, that a preliminary notice of claim will not be subjected to any such exacting canons of interpretation as would be applied to a formal pleading. Seeking to avail himself of these and other similar principles, he urges that in a general way plaintiff, in connection with other matters set forth in her statement, gave defendant notice that she had suffered various injuries as the result of her accident and that her notification Was sufficient for all practical purposes even though it did not point out the particular' injury proved upon the trial against the objection of defendant.
There is no difficulty in accepting the general principles thus pressed upon our attention so far as they are outlined in the decisions of the courts. The difficulty lies in accepting the results claimed to be authorized. thereby as applied to the notice under review. As against these general principles invoked for the benefit of the plaintiff, we must keep in mind certain others which have been laid down as governing the construction of statutes, such as that which now confronts her.
It has been held that while courts should not “by a strained technical interpretation build up immaterial and unsubstantial variances or omissions into inequitable and unjust defenses against meritorious claims, * * * upon the contrary, they should not lightly and easily go to the other extreme of devising excuses for, and ways of escape from, failure to comply with reasonable and important provisions.” (Rauber v. Village of Wellsville, 83 App. Div. 581.)
It has also been said that, “ Clearly the Legislature had the right to impose such a condition (requiring the service of a notice as a condition precedent to bringing a suit), and no reason is apparent why a forced or strained construction should be placed upon the *321language of the statute for the purpose .of relieving a litigant from the necessity of complying with the plain terms thereof.” (De Vore v. City of Auburn, 64 App. Div. 84.)
And, again, it has been said that courts “have no right to add anything to the statute or to take anything from it, and to permit any departure from its plain terms is to introduce into it an element of uncertainty, and open the way for a complete breaking down and nullification of the statute. * * * The requirements of the statute are simple and easily complied with, and their strict enforcement will prevent ultimate confusion and uncertainty.” (Borst v. Town of Sharon, 24 App. Div. 599.)
So, also, in answer to the suggestion made that plaintiff has. acted in good faith and attempted to comply with the statute, we must . bear in mind that our construction of the statute is not to be tested so much by the merits of the particular case under review as by the possibilities of what it will permit in other cases which may arise.
There is no doubt that the injury to the hip was the most substantial source of damages established in this case. This appears plainly enough upon the face of the evidence, and if further demonstration upon that point were wanting it would be found in the fact that plaintiff recovered a verdict of "$4,500 with that element in the case, whereas she had only asked originally for $1,000 upon the allegation of an injury to her knee.
Therefore, if we are right that the statement of plaintiff’s cause of action in her original notice was deficient in .that it did not fairly point out and cover the injury to her hip, and, notwithstanding that fact, it was still permissible for her to give evidence of such a serious injury, then we see no limit, in the matter of injuries at least, to the departures which a claimant upon the trial of his action may make from his original notice. If it is possible for this plaintiff, upon a statement in her notice of injuries to her knee, to prove a breaking of her hip, then it follows with perfect logic that upon a notice alleging a breaking of a finger a claimant would have the right to show a breaking of the arm, and upon a statement of an injury .to the heel to show a breaking of the leg, and upon a statement of an injury to the rib • to show a fracture of the spine, and so on. In short, without further illustration a construction of the statute such *322as plaintiff contends for in this ease would, in my judgment, lead to a nullification of it so far as concerns any requirement for a preliminary statement and notice of injuries claimed to have been sustained,.
I am unwilling to proceed in the direction of such a result, and none of the cases cited in behalf of the respondent present to my mind any parallel between the questions there- under review and the one here discussed. .
It is said, however, that in this case there are special reasons why plaintiff should be allowed to enlarge upon the injuries enumerated in her notice, and this contention is based upon the theory and supposition that th'e particular injury to her hip was unknown to her in time to include it in her notice. In my opinion, the facts in this case do not call upon us for a decision of the question whether the plaintiff upon the trial of an action should be allowed to give proof of injuries which were not and could not be discovered in time to include them in the notice required to be served under the statute. The facts in this case do not seem to establish such an excuse for the omission from plaintiff’s notice of a statement of the injuries to the hip.
The notice in evidence was served August 15, 1901, the injury having occurred August 4, 1901. While no provision, is made in the statute for amending this notice, there is no question but that another and second one might have been served at any time before the expiration of six months from the date of the accident.
As bearing upon the question whether plaintiff knew or ought to have known that her hip was injured, some extracts from the evidence may be quoted.
Speaking of .a period immediately succeeding the accident, she testified to intense pain in the hip as well as in the knee ; the limb was black and blue from the hip to the ankle, Dr. Belknap, who attended her immediately after, the accident, treated her entire limb, and Dr. Atterbury, who was called within a period of. six months, treated her for the entire limb. Dr. Belknap, already mentioned, testified that her limb “ was black and blue, bruised the whole length from .ankle to hip,” Dr: Atterbury testified that he found the limb .contused-.and badly swollen its whole length, and that “any.motion of the limb would cause pain at the knee, and also at the. hip.” He *323says he did not discover any intercapsular fracture at the time, but he “ suspected it.” And again, in answer to a question by the court, he says, “ I suspected a very serious injury to the hip and I could not possibly diagnose an intercapsular fracture at that time on account of the swelling and contusion and my treatment was to that effect, a fracture at hip; I suspected it and I used that precaution.”
The evidence seems to make it pretty plain that the plaintiff and the physicians attending her knew, or in the exercise of a reasonable examination ought to have known, that her hip was injured. It seems almost past comprehension that plaintiff for the period of six months under the attention of at least two physicians should fail to know that her hip had been broken.
It certainly seems entirely clear from the evidence that by a reasonable examination and formulation of the information derived thereby, plaintiff within six months from her accident might have prepared a notice which would warn defendant of an intended claim, of injury to her hip, even though such injury was not pointed out in terms of .minute definiteness. If she could have done this, then I do not think she can be relieved from her failure so to do upon any theory that she should not be held liable for not performing impossibilities. If compliance with the statute is to be enforced, I do not think it is harsh at least to lay down the rule that a claimant must take reasonable pains to ascertain for the purposes of his notice what his injuries are, and that if he fails to do this he shall not be allowed to prove them upon the trial. If quite palpable and serious injuries are overlooked and not included in the notice, the person who has overlooked them should suffer rather than the municipality which is without responsibility or fault in this respect and is entitled to a compliance with the statute if it can be had by the exercise of a reasonable effort.
I think the judgment and order should be reversed and a new trial granted.
Judgment and order affirmed, with costs.