Chapman v. Inhabitants of Nobleboro

Danforth, J.

The plaintiff was permitted to amend her writ under the objection of the defendant in two respects. The first of the amendments is, not a change in, but an addition to the description of the alleged defect in the way, and the second relates to the manner in which the accident happened; leaving the accident itself and the result of it the same. There is, therefore no change in the cause of action, either in the alleged defect or the result of it, and the allowance of the amendments was within the discretion of the presiding justice.

The construction given by the presiding justice to the notice to the town after the accident happened, is also objected to. It *430 is claimed not only that the construction was wrong but that it should have been left to the jury. There are cases where the force and effect of a written instrument used as evidence in connection with other evidence written or oral to prove a given proposition must be submitted to the jury. But that is not this case. The notice is not put in to prove a defect, or any other point in the case except to enable the party to show what notice was given and that the court may judge whether it is in compliance with the law. The statute, requiring the notice, requires that it shall be in writing and clearly defines what it shall contain. It is not to be varied by any " extrinsic facts ” whatever. It is simply a question as to the meaning of the terms used and whether it is a compliance with the statute. It is therefore by the well settled rules of law the duty of the court to construe it. Rogers v. Shirley, 74 Maine, 144-151; State v. Patterson, 68 Maine, 473 ; Larkin v. Boston, 128 Mass. 521 .

The only objection made to the notice is, that it does not sufficiently define the location of the alleged defect. There is no question about tbe road, but it is described as being " about sixty to eighty rods northerly of” a given point. Were there no description of the alleged defect this might possibly be considered somewhat indefinite. But here is such a description that when seen it could hardly be mistaken. " The legislature, in requiring the party to be notified of the place, intended such notice of the locality as to enable the precise spot where the injury was received to be ascertained with substantial or reasonable certainty.” Larkin v. Boston, supra, 523 . In this case the generality of the distance mentioned puts the officers upon their guard and it can be no hardship for them to examine the road the distance required for the defect so fully described as readily to be recognized when seen.

But it seems that the objection to the notice does not so much rest upon this indefinite statement of the distance, as upon the fact which the case shows that "there was evidence tending to prove” that the distance from the given point "to the defect complained of in the plaintiff’s writ was from one hundred and six to one hundred and ten rods.” How strong this tendency *431 was, or whether satisfactory to the court or jury, does not appear. It may be that the preponderance of testimony left the fact as stated in the notice. But if it were otherwise and the larger distance was established as the correct one, still in the absence of any suggestion of more than one defect answering the description, it would throw no doubt upon the fact as to the defect ielied upon; nor would it contradict the general statement in the notice. But whether it would do so, or otherwise, it could not affect the language of the notice, or- render that uncertain which in and of itself was certain.

It should be borne in mind that the location of the defect in the notice and in the writ are two separate and distinct things. A proper notice is undoubtedly a condition precedent to recovery. When that is offered in proof the court must pass upon its sufficiency. If found wanting the case can make no further progress. If found sufficient the plaintiff proceeds with the testimony. If the testimony fails to show that the injury was caused by the same defect described in the notice the suit must fail. Upon this as upon other points in the case the burden is upon the plaintiff and this question is clearly one of fact to be submitted to the jury. In this case if the jury had found the defect described in the notice within the distance therein mentioned and another similar one at a greater distance where the accident happened they would not only have been authorized, but required to find for the defendants on the ground that the plaintiff had failed to show that the defect described in the notice was the cause of the injury. Upon this point the evidence introduced as to distance was competent and material, not to show the sufficiency or insufficiency of the notice, but as bearing upon the question of identity of the place described in the notice with that where the injury was received. No exceptions are made to the instructions given or omitted upon this point; we must assume therefore that in this respect there was no error.

Exceptions overruled.

Peters, C. J., Walton, Libbey, EMERYand Foster, JJ., concurred.