Summary
Action upon tlie statute'with regard to highways and bridges, to recover damages for an injury received by the plaintiff Della L. Hoyle by reason of a defect in a highway of the defendant town; brought to the Superior Court in New London County, and tried to the jury,'upon the general issue, with notice, before Hovey, J.
The act of 1874, (now incorporated into the revision of 1875 as sec. 10, part 1, ch. 7, tit. 16,) provides that no action shall- be maintained against any town for an injury received by, reason of any defective highway or .bridge, unless written notice of such injury and of the time and place of its occurrence, shall, within sixty days thereafter, be given to a selectman of the town. The notice appended to the defendants’ plea was that the notice required by the statute had not been given.
On the trial the plaintiffs introduced evidence to prove, and claimed to have proved, that on the 14tli day of October, T875, the plaintiff Della L. Hoyle, while riding with the plaintiff George A. Hoyle and their child, in a wagon drawn by one horse along one of the public highways of the defendant town, which the town was bound by law to maintain, was thrown from the wagon and injured in her person, by means of the defective condition of the highway.
At the time the injury was sustained, and for more than eleven months next following, there were three selectmen of the town, Edward S. Lyon, David E. Clark and Lyndon Tucker, all of whom exercised, during that time, the functions of the office.
It was admitted by the plaintiffs that no notice in writing of the injury, and of the time and place of its occurrence, was given to the selectmen, or either of them, within sixty days after the injury occurred, nor at any time before the commencement of the suit. But they offered evidence to prove, and claimed that by that evidence they had proved, a waiver by the defendants of such notice. The evidence so offered was objected to by the defendants, but was admitted by the court, and was as follows:
John A. Kennedy, Jr., testified as follows: “Edward S. Lyon, first selectman of the town, came to Mr. Hoyle’s the morning after the accident and inquired how badly he and his family were hurt by being thrown from his wagon. Mr. Hoyle replied that he could not tell, but that it was bad enough, and that the town would have it to pay for. Mr. Lyon said to Hoyle, Don’t go to being too naughty about it. Hoyle said, They will have to settle for it. Mr. Lyon said, Don’t make any fuss about it; we will make that all right.”
Judson M. Lyon testified as follows: “ I was counsel for Mr. Hoyle, and had a conversation with Edward S. Lyon three or four weeks after the accident. I told him, that Mrs. Hoyle had been hurt by reason of a defect in the highway. He said he knew it. He also said that he supposed the town would have to shoulder it. I told him that Hoyle would sue the town; and he told me to make no trouble or expense about it *—it should be arranged. I subsequently had another conversation with Mr. Lyon, and asked him if the matter had been arranged. He said no. I told him that Hoyle would sue the town. He said, Make no trouble about it; it shall be arranged; it shall be settled. Afterwards, I was told by Mr. Lyon that the selectmen were coming together the next Friday night, and that he would bring the matter before them. It rained that night, and they did not meet. I had no conversation with either of the other selectmen. He was the first selectman.”
Gorlin Gooper testified as follows: “ I heard a conversation between selectman Lyon and Hoyle four or five weeks after the accident. I was going by and saw them together. As I came up Hoyle said to Lyon, if you don’t pay me something for getting hurt, I shall have to sue it. Lyon said, I will see the other selectmen and will make it all right.”
The plaintiff George A. Hoyle gave the following testimony: “The next morning after the accident Edward S. Lyon came into my place. I saw him. He was at that time first selectman of the town. He said to me, I understand that you, your wife and child, were thrown out of your wagon on the cross-walk last night, and he wanted to know how badly we were hurt. I told him I was pretty sore, and my wife was bruised very badly, but I thought no bones were broken. He said, I am sorry; Mr. Clark left it very carelessly. I told him I should hold the town responsible for it. He said he supposed they were responsible. That was all the conversation that passed between us at that time. About two or three weeks afterwards, I had another conversation with Mr. Lyon. He was talking about our being thrown out. I said, I shall hold the town responsible, and should like to settle it up. He said, We shall meet in a few days and I will lay it before the other two selectmen and see what they say about it. Some time after the night that they were to meet, I spoke to him about it, and he said that the selectmen didn’t meet at the time named, as it was stormy that night, but be said, I will do what is right about it; I don’t want any trouble about it at all.”
There was no other evidence offered to prove that the notice in writing had been waived; nor was there any evidence that the selectmen Clark and Tucker, or either of them, had any knowledge of the conversations that have been stated.
During the argument of the cause, the counsel for the plaintiffs requested the court to charge the jury that the question of waiver was one of intention, and that a waiver might be by the acts and declarations of the selectmen of the town; and that it was a question of fact for the jury to determine whether, under all the circumstances, the town had, by its agent and selectmen, waived the notice required by the statute.
The court refused to charge as requested, but charged the jury as follows: “ To enable the plaintiffs to maintain this action it is essential that it should appear from the evidence that notice in writing of the injury complained of, and of the time and place of its occurrence, was given to one of the selectmen of the town, within sixty days after the injury was sustained, or that the notice was dispensed with or waived by the town. The town, in legal meeting assembled for the purpose, might, by a vote, have dispensed with or waived such notice; and the notice might have been waived or dispensed with by the selectmen of the town, or a majority of them, in the absence of any vote of the town. But it was not competent for one of the selectmen alone, by any acts or declarations, which were not concurred in by his associates, or a sufficient number of them to constitute a majority of the board, to dispense with or waive thdwritten notice which the statute requires. And the power of the first selectman, though by virtue of his office he was agent of the town, was no greater in this particular than that of either of the other selectmen. It is admitted by the plaintiffs that the written notice required by the statute was not given to either of the selectmen of the defendant town; and there is no evidence before the jury tending to prove that the notice was waived or dispensed with by a vote of the town, or by a majority of the selectmen. It necessarily follows that this action cannot be maintained, and that the verdict of the jury must bo in favor of the defendants. You are therefore instructed to return a verdict in favor of the defendants, and for them to recover of the plaintiffs their costs.”
The jury returned a verdict for the defendants, and the plaintiffs moved for a new trial for error in the charge of the court.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
