Hartsell v. City of Asheville

ClaRK, C. J.

"When this case was here before, 164 N. C., 193 , the Court held that, there was no liability in favor of the plaintiff against Maria Beale and her husband by reason of their ownership of the lot adjoining the sidewalk on which the plaintiff slipped and fell, to her injury, and sustained the non-suit as to the city of Asheville because the plaintiff had 'failed to offer sufficient evidence of an excuse for failure to file notice within ninety days of her claim, as required by the charter of the city.

The petition to rehear does not allege any error as to Mrs. Beale and husband, and is directed solely to the holding that *634 there is no evidence to submit to the jury to excuse plaintiffs failure to present tbe notice to tbe city witbin tbe required ninety days.

Tbe requirement tbat sucb notice shall be presented witbin ninety days is a reasonable one and its legality is not controverted. But in Terrell v. Washington, 158 N. C., 298 , it was said tbat to excuse a strict compliance witb tbis requirement, “it must be shown-tbat there is sucb physical or mental incapacity as to make it impossible for tbe injured person by any ordinary means at bis band to procure service of tbe notice . . . and if there is actual incapacity, it can make no practical difference whether it is mental or physical in its nature.”

It is not necessary tbat tbe injured party should be in physical and mental condition to make sucb claim and give due notice for tbe whole period of ninety days. Tbe ninety days is prescribed witb tbe view tbat at some time witbin tbat period tbe injured party will be in condition to give tbe notice, and it should be given to permit tbe city to make prompt investigation and to avoid imposition. All tbat is necessary is tbat there should be reasonable opportunity witbin tbat time in which tbe plaintiff will be able to give tbe required notice.

On tbe former hearing, on consideration of tbe evidence, we thought tbat tbe plaintiff bad not introduced any evidence which would authorize a jury to find tbat during tbe whole ninety days she bad been under “sucb physical or mental incapacity as to make it impossible for her, by any ordinary means at band, to procure service of the notice.” But upon reconsideration of tbe testimony, we find tbat, taking her testimony to be true, tbe jury might or might not so find. She testified tbat during tbe first eight weeks in tbe hospital she was absolutely helpless, and was practically helpless for three months, and tbat she left tbe hospital only at tbe end of three months. Her daughter testified tbat her mother during tbe time she was in tbe hospital was as helpless as a baby, and remained in a practically helpless condition for two months after she came home.

We are of opinion, upon reconsideration, tbat upon all tbe testimony tbe issue should have been submitted to tbe jury,.

*635 under proper instructions from the court, whether by reason of her physical or mental condition the plaintiff was unable at any time during the ninety days to give, or to cause to be given, to the city notice of her injury.

Petition allowed.