Morgan v. City of Lewiston

Whs well, J.

Action to recover for personal injuries sustained by the plaintiff through an alleged defect in a street of the defendant city.

The defective condition complained of is, that at the junction of Main and Park streets, the sidewalks were not on the same level. The .Main street walk was of brick, constructed about a month prior to the accident, with a plank at the outside of the walk, at the junction, set upon edge, with the top of the plank flush with the surface of the walk, for the purpose of retaining the brick in place. The Park street walk was of earth, with ashes placed next to the brick sidewalk and extending back on the Park street sidewalk for about six feet.

This latter sidewalk at the junction was slightly lower than the surface of the brick sidewalk. The difference in level varied somewhat because the dirt sidewalk was rounding, being higher in the *570 middle and on one side than on the other. The Park street walk upon one side and in the middle was from one to two inches lower than the Main street walk and upon the extreme outside of the Park street walk it was five and one-half inches lower than the top of the plank. Two feet in from this extreme outside the difference in level was but two and three-fourths inches, the whole width being about six feet.

The first question is, whether or not the condition above described was a defect within the meaning of the highway statute. The case comes to the law court upon report and we are given jury powers in passing upon all questions of fact.

This court has always held, that the statute which requires cities and towns to keep their ways, “safe and convenient for travelers” means reasonably, not absolutely safe. Was this particular place, taking into account its location and all surrounding circumstances, reasonably safe for persons having occasion to pass over it, who upon their part were in the exercise of due care? We think it was. These sidewalks were upon different streets. In our opinion it would be unreasonable and impracticable to require of cities and towns that they should so construct all of their sidewalks, that at junction of rectangular streets the sidewalks should meet upon exactly the same level.

The difference in level here complained of was not so much as ordinarily exists between a sidewalk and a street crossing. True, it is said, that this would be expected in the latter case, but we think that a person in the exercise of due care, who was unacquainted with the locality ought to anticipate that, at the junction of two sidewalks, in a place such as was this, there might be exactly such a condition as is here complained of.

In Witham v. Portland, 72 Maine, 539, this court held as a matter of law, after a jury had found the other way, that a depression in the sidewalk of the defendant city, six and one-half inches below the surface of the walk, and eight and one-half inches in width from a basement window, about one-half of which was within the limits of the walk was not a defect. A much stronger case for the plaintiff, we think, than this.

*571 Although this conclusion disposes of the case, we think it proper to refer to another position of the defense. The statute requires a person injured by reason of a defective way, to give the municipal officers written notice within fourteen days after the accident, and among other things therein to, “ set forth his claim for damages.” In the recent case of Lord v. Saco, 87 Maine, 231, it was said in the opinion of the court, referring to this requirement, “ we think this fairly implies that the amount of his claim should be stated.” In the notice in this case the amount of the plaintiff’s claim for damages was not stated. After referring to the accident, the plaintiff says in her notice, “for which I claim damages from the city of Lewiston.”

If the statute is correctly construed in Lord v. Saco, supra, this notice was insufficient. But this court held in Sawyer v. Naples, 66 Maine, 453, when the statute in this respect was the same as now, that it was not necessary that the amount of damages should be stated in dollars and cents. It is not unnatural that there should be considerable doubt among members of the profession as to which of these conflicting cases would be sustained.-

We do not think that the court in Lord v. Saco intended to overrule Sawyer v. Naples. If that had been the intention it would have clearly appeared in the. later case. In Lord v. Saco, the notice was clearly insufficient in other respects, there was no description whatever of the nature of the defect, nor was there any specification, as required by statute, of the nature of the injury. The insufficiencies of the. notice in that case were so glaring that the members of the court passed over without noticing one of the reasons given in the opinion. And we believe that the learned justice who prepared the opinion did not at the time have in his mind the earlier case.

The case of Sawyer v. Naples, was decided in 1876, since which time the statute has remained unchanged in this respect; if the legislature had desired that the claim for damages should be more specifically made, than the construction placed thereon by the court required, it could have easily amended it. This court did not intend, after the statute had remained unchanged for twenty years *572 with, the construction placed upon it by tbe court in Sawyer v. Naples, to change tbat construction so as to give it an entirely different meaning.

Tbe court is of tbe opinion tbat where tbe statute requires a person injured to set forth bis claim for damages, it does not mean that tbe damages must be specified or tbat tbe amount claimed must necessarily be stated. Tbe notice is sufficient in this respect if the sufferer sets forth in bis notice tbat he makes claim for damages.

Although this question was not involved in tbe decision of tbe present case, because of our conclusion tbat no defect existed, still-we have thought tbat in view of the conflict of tbe two cases above referred to it was proper to express tbe opinion of tbe court upon tbe subject.

Judgment for the defendant.