Rogers v. Inhabitants of Shirley

Barrows, J.

November 30, 1878, the plaintiff’s horse broke his leg by getting it caught in a hole or rut, "in Shirley woods, so-called,” "on the highway loading from Shirley corner to Green-ville,” and he brings this action against the town to recover' damages therefor. The verdict was in his favor,.and the case comes before us upon exceptions to the rulings of the presiding-judge upon the questions of notice before and after the accident. The case arises under c. 206, laws of 1877, which gives the plaintiff a remedy if, before the accident occured, the municipal officers, highway surveyors or road commissioners of the town had "twenty-four hours'actual notice of the defect or want of' repair” which occasioned it, and the party sustaining the injury notified the municipal officers or some one of them within fourteen days after its occurrence, "in writing, setting forth his claim for damages and specifying the nature of his injuries and the nature and location of the defect which caused the injury.”

I. As to the notice of the existence of the defect before the accident, the inquiry is not now what it was under E. S., c. 18, § 65, before it was amended, i. e. whether the town "had reasonable notice of the defect or want of repair.” This phrase had in process of time become as well defined by judicial decisions as. its nature would permit; but it is obvious that it is not what the statute now requires as a condition precedent to the maintenance of the action. The call now is for twenty-four hours actual notice to the municipal officers, highway surveyors or road commissioners of the town, of the defect or want of repair, which is-the cause of the accident, provable as in other cases whore actual notice is required, by circumstances showing personal knowledge on the part of the party to be notified, or information conveyed' to him by others, of the existing facts. Nor can one be said to *148 '.have actual notice of such a thing as this statute has reference ‘to, until both the character, and approximately the location upon the face of the earth, of that which constitutes the defect, is in some way made known to him, so as to distinguish it from parts ■of the road which are not thus defective, though it is not essential that he should appreciate the danger likely to arise therefrom.

The statement of the evidence upon which the ruling of the presiding judge, as to the notice prior to the accident was based, is very meagre, so much so that it is not easy to determine whether the defendants were or were not aggrieved by the 'instruction given on this point. The only information we have ■.respecting it, is that "the road through Shirley woods, so called, -was about a mile and a half long, and the whole distance was •much in the same condition, having been deeply rutted by heavy ■teaming, thawing and freezing, and there were different places • and spots in the road similar to the one where the accident ^happened.”

The phraseology leaves us in doubt whether there were continuous ruts all the way amounting to a defect, or whether there ' 'were several different places within the distance of - a mile and a lhalf which needed repair, in one of which the accident occurred.

That such a road at that season of the year would grow worse ■every time a heavily loaded team passed over it, is reasonably ■certain. Whether it would be defective and dangerous might ■ depend upon the changes occurring within twenty-four hours :from freezing to thawing, or the reverse; and it would be almost ■certain that the holes made by the wheels would be deeper in ■some places than others, and probable enough that the depth might be increased within the twenty-four hours next preceding the accident.

The exceptions do not show the manner in which the accident occurred, nor whether the road was worse at the point where the horse broke his leg, than elsewhere in the vicinity. They are equally silent as to the manner in which the plaintiff attemjoted to prove the twenty-four hours notice except as we may infer it from the language of the charge, which was in substance, that if one Dennin who was chosen and qualified as a road surveyor for *149 1878, "bad the required notice, and was applied to to remedy the piece of road where the defect was, and did not communicate the fact to those who complained to him of the defective road, that he had no jurisdiction of the limits within which the defective place was situated, then the notice to him would be, in legal effect, a notice to 'the surveyors,’ and would be sufficient.” With that he committed it to the jury, to decide whether Dennin withheld from those who complained to him of the defective road, the fact that he was not surveyor for that district, and whether he had at least twenty-four hours actual notice; and here the presiding justice added the instruction (which forms one of the chief grounds of complaint), that "the notice was general, a notice of a bad road including other places as well as this in question; but it was none the less a notice of this place because at the same time a notice of others.”

Now as to the effect of giving "the required notice” to Dennin, in the contingency supposed, we think the instruction was correct. A notice required to be given to the municipal officers, was held in Sawyer v. Naples, 66 Maine, 455, to bo sufficient if given to one of them. It is true that highway surveyors with definite limits to their districts, stand on a somewhat different footing. But while the legislature perhaps intended that the twenty-four hours actual notice contemplated in the act of 1877, c. 206, should be given either to one of the municipal officers having general superintendence of the affairs of the town, or to the surveyor of the district whose business it was to remedy the-defect, they have not said so; and we have no doubt that if the information of the defect is given to either of the highway surveyors in good faith, in the belief that the defective place is. within the limits of his district, and he allows his informant still to believe that it is so, and does not communicate the fact that it is not, the town would be estopped to dispute the sufficiency of' the notice, so far as the question relates to the person to whom, it should be given.

When the communication is oral, or the proof of actual notieo-is circumstantial, the question whether there has been actual, notice is for the jury. Porter v. Sevey, 43 Maine, 530.

*150 .In the present case whether any of the officers named in the statute had "the required notice,” was a question of fact for the jury, upon testimony of which we have no report. So far as appears, the plaintiff undertook to prove actual notice by verbal communications to Dennin as one of the highway surveyors of Shirley, by parties whom (whether he was or was not the surveyor of the district where the accident occurred,) ho dismissed in the belief that he was so. There was no error in the ruling qualified as it was, that "if he had the required notice,” it would be, in legal effect, a notice to the highway .surveyors.

Nor in the absence of any statement of the communication made to him can we say that the remainder of the instruction was incorrect. The presumption is the other way, and it was for the excepting party to state enough in his exceptions, to show that the instruction was either incorrect as matter of law, or inapplicable to the evidence. Clearly it would not vitiate "the notice of this place,” because at the same time notice of other defects was given. We do not mean to say that a naked general complaint of a bad road through Shirley woods, giving no particulars of the nature and location of the defects, would be sufficient, or that any notice would be sufficient which was not "a notice of this place” —but that these exceptions fairly construed do not show that such was the character of the notice given to Dennin. The language of the instruction would seem to imply, that there was "a notice of this-place,” and also of other defects given at one and the same time.

II. The notice of the claim upon the town to be given to the municipal officers within fourteen days after the accident, is now required to be in writing, and it was so given. The defendants -objected to it as insufficient and except to an instruction given to the jury that "if it did not in fact mislead the defendants, and was enough to lead the town into such inquiry and investigation .as would result in their acquiring a full knowledge of the facts in the case, it would be sufficient.”

The cases of Blackington v. Rockland, 66 Maine, 332, and Bradbury v. Benton, 69 Maine, 194, relied on to support the .ruling, both arose under the statute of 1874, c. 215, in -which *151 the only notice of the existence of the defect before the accident required was the old "reasonable notice” called for in E. S., c. 18, § 65; and the notice of the claim for damages, not necessarily in writing, was to be given within sixty days "specifying the nature of his injuries.” The reasoning of the court in those cases, was based upon the statutes as they then stood. The requirements of the present statutes are materially different. Under c. 206, laws of 1877, the subsequent notice must be in writing "setting forth his claim for damages and specifying the nature of his injuries and the nature and location of the defect which caused such injury.”

The construction and sufficiency of the written notification should have been passed upon by the presiding judge as matter of law. He should not have put the jury upon the inquiry whether it was enough to lead the town to such investigation as would result in their learning the facts of the case. That is not the test of the sufficiency of the notice now required.

The notice might accomplish that without stating "the nature and location of the defect.” But such a statement is none the less required by the present statute. The only attempt to meet that requirement in the notice here presented, is, that it was " a hole in the highway leading from Shirley corner to Greenville, . .. in the town of Shirley, aforesaid, in Shirley woods, so called.” This is not specifying the location of the defect. It was an undisputed fact that the road through Shirley woods was about a mile and a half long, and we think the jury should have been instructed as matter of law that the notice was insufficient. Hubbard v. Fayette, 70 Maine, 121; Larkin v. City of Boston, 128 Mass. 521 .

See State v. Patterson, 68 Maine, 473, for full discussion as to the respective provinces of court and jury where the meaning and effect of written evidence are in question.

It cannot truthfully be said that here was as good a specification of the location of the defect as the plaintiff under the circumstances could make. To say nothing of other modes, -with reasonable attention to the requirements of the statute, he could *152 have made a statement of distances approximately correct which would have defined the location within less than a mile and a half. Larkin v. Boston, is exactly in point.

Exceptions sustained.

Virgin, Peters and SÍymonds, JJ., concurred. Appleton, G. J., being interested, did not sit.