Driscoll v. City of Fall River , 163 Mass. 105 ( 1895 )

Morton, J.

It is evident that the question which was objected to called for an answer as to the reputation of the foreman amongst the gang with which the witness had been working from three or four days to a week, and whose number did not appear, nor how long they had worked under the foreman. A general reputation regarding the incompetency of a servant is admissible on the ground that it furnishes some reason to believe that, if the master had exercised due care, he might have learned or heard of the incompetency. But the reputation of a foreman amongst a few workmen employed under him is not a general reputation. It is merely the opinion of a small number of men, of which there is no sufficient reason to suppose the master may be cognizant, or which he may be bound to heed. Monahan v. Worcester, 150 Mass. 439. Gilman v. Eastern Railroad, 13 Allen, 433, 444. Whitcher v. Shattuck, 3 Allen, 319, 321.

We assume that the two papers which are relied on as being the notice were given to the defendant, though the bill of exceptions does not state, that they were, nor where nor to what officer; but we do not think that they constituted a sufficient notice. The first paper is headed “ John Driscoll,” and appears to be a record of the events immediately preceding and connected with the accident to him. The second paper is a description over the signature of a physician .of the injuries sustained by John Driscoll as the result of the accident. We may conjecture that the two papers were intended to be a notice to the defendant of the time, place, and cause of the injury, in accordance with the statute. But they neither purport to be given in behalf of the plaintiff, nor to indicate that he had any claim against the city. The notices required by the statute are not to be construed with technical strictness, but enough should appear in them to show that they are intended as the basis of a claim against the city or town, and are given on behalf of the person who brings the suit. Kenady v. Lawrence, 128 Mass. 318. St. 1887, c. 270, § 3, and amendments.

We think that the notice in this case is defective in both particulars. Exceptions overruled.