Eggleston v. Town of Chautauqua

Williams, J.:

The judgment and order should be affirmed, with costs.

The action was to recover damages for an injury upon a defective . bridge in the- town of Chautauqua.

No claim is made that the evidence was not sufficient to warrant a finding that the commissioner of highways was negligent and the plaintiff free from negligence, and that she was injured and suffered the amount of damages for which the verdict was rendered.

' The principal contentions relate to the statement presented to the supervisor of the town in behalf of the plaintiff under section 16 of the Highway Law of the State (Laws of 1890, chap. 568). That section 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 action shall have been presented to the' supervisor of the town within six months after the cause of action accrued; and no such action shall be commenced until fifteen days after the service of such statement.”

The statement served in the case, among other things, contained the following: “ That by reason thereof the claimant was badly bruised and suffered a severe injury to her right leg at and about the lenee, sustained a severe shock, was made sick, suffered much pain, is so far disabled that she is compelled to lie in bed and has been obliged to pay large sums of money for medical attendance and care and has been incapacitated from attending to her ordinary duties in caring for herself or deriving any benefit from her visit among her friends and acquaintances * * * to her great damage in the sum of one thousand dollars.”

Upon the trial the court, under defendant’s objection, permitted proof of injuries other than those to the right leg at and about the lenee, particularly of an intercapsular fracture, an injury of a serious nature to the hip, and the court refused to reduce the verdict rendered for such injury, $4,500, to the amount stated in the statement served, $1,000. There is no reason to suppose that the plaintiff intended at the time she made and served her statem ent to misrepresent her injuries. The accident occurred August 4,1901, and the claim was made and served ten days later. At that time the injury appeared to be confined to the lower leg and vicinity of the knee. The doctor in attendance so believed and advised her, and she had no reason to suppose the damage would be greater than $1,000. The complaint was served in February and the trial occurred in April, 1902. The complaint was broad enough to admit proof of the more serious injury, and the demand was for $5,000 damages.. It was not discovered what the real nature and extent of the injury was until just before the trial took place. The requirement of the statute is not specific, but quite general, “ a verified statement of the cause of action.” In the absence of any intention to mislead the town it Would be hard to deprive the claimant of the right to recover adequate damages for the actual injuries she sustained, because she was ignorant of the real extent thereof when she verified her claim. Being required to swear to the truth of the, statement, she could only state the nature and extent of her injuries as she then understood and believed them to exist. No provision is made by statute for amending the statement after it is served, and no new statement can be served after the expiration of six months from the accident. In this case the real nature and extent of the injury was not discovered until the six months had expired. The statement is to be “ of the cause of action” It should state facts showingHhe occurrence of the accident, the defects in the bridge which caused it, that the commissioner of highways was negligent and the plaintiff was free from negligence, and that the-plaintiff was injured and was entitled to damages therefor. It might well state the nature and extent of the injuries sustained and the amount of damages claimed therefor, but the amount of damages would be merely an estimate and they would not be restricted to the amount stated. (Reed v. Mayor, etc., of N. Y., 97 N. Y. 620.)

The statement as to the nature and .extent of the injuries might be in quite general language and not at all specific. The statement need not be as full and complete as the complaint in an action. Its object is to give the town notice of the claim, so as to enable it to investigate the same, and then to adjust it or be prepared to defend an action brought to enforce the same. The statute should receive a reasonable construction, and not such a one as to unjustly deprive a party of the right to recover adequate damages for the real injuries received. A substantial compliance with the statute should be held sufficient. (See Spencer v. Town of Sardinia, 42 App. Div. 472, and cases therein referred to.)

In this statement besides the facts stated as to the injury “at and about the knee,” there are general statements, viz.: She “. was badly bruised, * * * sustained a severe shock, was made sick, suffered much pain, is so far disabled that she is compelled to lie in bed, * * * and has been incapacitated from attending to her ordinary duties,” etc. A strict construction, such. a construction as would be given to a complaint in an action, might make all these general statements refer to the specific injury stated, viz., to the leg, “ at and about the knee,” but such construction should not be given here. The object of the statute was fully served, and its letter substantially complied with by the statement made, and the real, nature and extent of the injuries could be proved on the trial and recovered for.

While parts of the charge read by themselves appear to state the law erroneously, yet when the whole charge is read together no reversible errors appear to have been made.

We conclude that the judgment and order should be affirmed, ¡with costs. 1

All concurred, except Hiscock, J., dissenting in an opinion, and McLennan, P. J., not sitting.