Veno v. City of Waltham , 158 Mass. 279 ( 1893 )

Barker, J.

The notice was ambiguous in its statement of the place of injury, since there were two places on the sidewalk on the south side of School Street, near its junction with Spring Street and about fifty feet from Spring Street, one of which places was east of the junction, and the other west, and each of which was equally well described. Assuming that the notice was defective in the sense of the statute, it was nevertheless sufficient, if it was shown at the trial that there was no intention to mislead, and that the city was not in fact misled thereby. Pub. Sts. c. 52, § 19. St. 1888, c. 114, § 1. It was agreed that there was no intention to mislead, and the only question is whether the jury might properly find, from the evidence introduced and offered, that the city was not in fact misled. The ambiguity had very little tendency to mislead any one who should undertake to investigate the circumstances of the injury. The two places, either of which might be the one designated, were in the same neighborhood, and each was so near the intersection of the two streets that any officer of the city who should examine the locality would naturally perceive the ambiguity, and be led to visit both places, and to inquire which was the scene of the accident. Whether or not this, without evidence directly to the point, would justify an inference that the city was not misled, (Bowes v. Boston, 155 Mass. 344,) we are of the opinion that the evidence produced and offered was sufficient to justify a finding for the plaintiff upon that issue. Some of the city officials, even before the service of the notice, had been informed by the plaintiff and her attorneys of the exact place of the injury, and an investigation had been made by the chief of police, who had entered the particulars of the accident on the journal at the police station, in accordance with a regulation of the city government, and on the day after the service of the notice he informed the city clerk of the facts in his possession in relation to the accident, which facts included the correct statement of the place where it occurred. In addition to. this, the plaintiff had stated all the circumstances to the committee on claims, whose duty it was to investigate all claims against the city, at a meeting of the committee at which the city solicitor was present, and which was held only fifteen days after the service of the notice, and at which the chief of police stated to the committee all the facts in his possession. The ease should have been submitted to the jury.

Exceptions sustained.