Saunders v. City of Boston

Knowlton, J.

The plaintiff cannot recover without showing

that a notice of the time, place, and cause of the accident was given to the city, in accordance with the requirements of the Pub. Sts. c. 52, § 19, as amended by St. 1894, c. 422. She did not give a notice within ten days, as required by the statute ; and the only question in the case is whether there was evidence that, from physical or mental incapacity, it was,impossible for her to give one within that time. If the jury could properly find that it was impossible, her later notice might have been found sufficient under the Pub. Sts. c. 52, § 21; otherwise she must fail in her action. It has repeatedly been held that a plaintiff cannot take advantage of this last provision of the statute if his physical and mental capacity would enable him to *596 procure another person to give the notice in his behalf, even though he could not give it personally. May v. Boston, 150 Mass. 517 . Mitchell v. Worcester, 129 Mass. 525 . McNulty v. Cambridge, 130 Mass. 275 . Lyons v. Cambridge, 132 Mass. 534 .

The plaintiff’s injury was a sprain of her ankle, which caused her great pain, and for two or three weeks made it impossible for her to step on her foot. She had two children, and her husband was a poor man, who depended on his daily earnings to support his family. But'she was able to tell her husband the cause and place of the accident when he came' home on the night when it happened, and he went that evening to look at the place. She also told the doctor about it when he first came to visit her. The evidence tends to show that she sent to a lawyer a week or ten days after the accident, and there is nothing to show that she could not have caused a notice to be given before the expiration of the ten days as well as afterwards. She fails to sustain the burden of proof that rests upon her.

Exceptions overruled.