At the second trial of this case, after the decision reported Barclay v. Boston, 167 Mass. 596, the evidence tended to show that the plaintiff’s intestate died upon the twelfth day after her injury, and without herself giving the statute notice ; and that before the expiration of ten days from the time of the accident she became delirious and remained delirious and unable to transact business until her death. If such were the facts, under the provisions of Pub. Sts. c. 52, § 21, her administratrix might give the notice, and the presiding justice was therefore wrong in ordering a verdict for the defendant, as matter of law. The question of fact, if disputed, was for the jury.
Exceptions sustained.