Inlagen v. Town of Gary

PORLEY, J.

[1] In the trial court, plaintiff recovered damages for a personal injury resulting from .a defective sidewalk on one of the defendant’s streets. A motion for a new trial was overruled .and 'defendant appeals. Appellant presents its case upon eight separate assignments, Ibuit respondent challenges appellant’s right to have any of these assignments considered -by -the court because none of the matters upon which such assignments are 'based are contained in appellant’s statement of the case. An examination of appellant’s brief shows that respondent’s- position -is well taken as to the first, second, third, fifth, and sixth assignments. These assignments relate to the admission and exclusion of testimony by the trial court, (but the statement does not contain the Objections nor the rulings of the court thereon, nor does it appear whether any .exceptions were ever taken to the rulings of the -trial; court. These matters are, therefore, not properly 'before the court for review: Brewster v. Miller, 31 S. D. 613, 141 N. W. 778 ; Peterson v. Miller, 146 N. W. 585 ; Sanford v. Helgerson, 31 S. D. *200 472, 141 N. W. 390 ; Todd v. Burger, 31 S. D. 622, 141 N. W. 515 ; State v. Doran, 28 S. D. 486, 134 N. W. 53 .

[2] At the close of .plaintiff’s testimony and, again, at the close of all the testimony, appellant moved for a directed verdict, upon the ground:

"That it appears from- the evidence that no sufficient notice such as is required by Chapter 90 of the Session Daws of 1907 of this state has been given to the clerk of the defendant town, within the time provided by that law, and containing a statement of the time, place and cause of the alleged injuries; for the further reason that it appears from the evidence of the plaintiff that the alleged defect in question was a defect for which the town would not be liable, and that the plaintiff has failed to1 show that the defendant town ¡had either actual or constructive notice of the defect prior to the time of the injury.”

These motions were both overruled by the court, and are -the basis of the fourth and seventh assignments'; but no exception was taken to either of such rulings and, therefore, they are not reviewable by Ais court: Barnum, et al. v. Chamberlain L. &. L. Co., 147 N. W. 647 , and cases there cited.

[3] The eighth assignment is based upon the denial of appellant’s motion for a new trial. . This assignment brings up the sufficiency of the evidence to support the verdict, and was one of the grounds upon which the motion for a new trial was made. It is first claimed by appellant that' tíre evidence does not show that, within sixty days after the injury complained of, the respondent gave the town clerk notice of the time, place and cause of the injury as required by Ch. 90, Laws of 1907. While it does not appear that a formal notice of these facts were served' upon the town clerk, it does appear that, within sixty days after the injury, the town clerk received a letter from, plaintiff’s attorney demanding a settlement for such injury, and, in a general way, called the clerk’s attention to the time, place and cause thereof. This was- a sufficient compliance with the statute. The purpose of this law is to apprise ¡the town or city of the fact that an accident, for which damages will be claimed, has occurred, in order that the officers of such city or town may have an opportunity to investigate the cause of such accident, if any, while the conditions, which resulted in said accident are, as nearly as may ¡be, the same as when the *201 accident occurred. In this case, it affirmatively appears that the officers of the defendant town, or some of them, had1 knowledge of this accident and of the time, place and cause thereof, and that they investigated the same not later than the following day. The fact that the notice may have been informal or inaccurate is wholly immaterial, as the law expressly provides that the notice “shall not be deemed invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of injury.”

[4] It is also claimed by the appellant that there was not -sufficient evidence to show negligence on the part of the town, or that it had notice, either actual or constructive, of the 'defect in the sidewalk that is alleged to have occasioned ithe injury. The evidence on this feature of the case is conflicting. If the testimony on behalf of respondent is the truth, the defect had existed long enough and was of such a character as to charge .the officers of the town with notice thereof. It is true, this testimony was- contradicted 'by witnesses for appellant, but this presented ah issue of fact for th’e jury. It was- submitted to the jury -under instructions that were satisfactory to the appellant, and the conclusion reached 'by the jury is final.

No error appearing on the record, the judgment and order appealed from- are affirmed.