Dalton v. City of Salem

Colburn, J.

Under the statutes in force at the time the plaintiff received her injury, it was necessary for her, as a condition precedent to her right to maintain this action, to give to the defendant a notice in writing of the time, place, and cause of her injury. Sts. 1877, e. 234, § 3; 1879, e. 244. Shea v. Lowell, 132 Mass. 187. The St. of 1882, c. 36, does not apply to this case. Shallow v. Salem, 136 Mass. 136. She gave a notice in writing to the defendant, which stated the time of her injury with particularity, and it has been decided that the notice states the cause of her injury sufficiently. Dalton v. Salem, 136 Mass. 278.

The question now presented is, whether the statement of the place of her injury in her notice is a sufficient compliance with the statute. The only statement of the place is, that it was “on the sidewalk on Lafayette Street near Lagrange Street.” Lagrange Street leads from the easterly side of Lafayette Street, and if we assume, as a fair construction of the notice, when applied to the premises, that it designates the easterly sidewalk of Lafayette Street, it does not indicate whether the part of the sidewalk northerly of Lagrange Street, or the part southerly of that street, was intended. The alleged defect was “ the icy and slippery condition of the said sidewalk.” The accident happened on November 21, and the notice was given on November 29, and it cannot be supposed that, at that season of the year, the sidewalk remained in the same icy condition for eight days, so that the alleged defect, as a permanent object, aided the description of the place at the time the notice was given.

As the notice described with equal accuracy two distinct localities, with nothing on the premises at the time the notice was given to indicate which was intended, we are of opinion that the place of the accident was not stated with such substantial accuracy as the statute requires. Cronin v. Boston, 135 Mass. 110.

The evidence offered was inadmissible. It could only show an oral notice, which was of no avail, or that the city clerk, acting as the agent of the plaintiff, wrote the notice, which was immaterial. He had no authority to write the notice as agent of the city. Exceptions overruled.