Cowan v. Inhabitants of Bucksport , 98 Me. 305 ( 1903 )

Emery, J.

There was evidence sufficient to warrant the jury in finding that while the plaintiff was riding in a pung with all due care upon a highway, which the defendant town was bound to keep in repair, the pung came in contact with a stone or rock which constituted a defect in the highway, by which collision she was injured. The only matters now relied on by the defendant town after verdict, as barring the plaintiff’s right of recovery, are those relating to the notices required by the statute upon which the action is based.

I. Exception is taken to the admission in evidence of the written notice given after the injury, upon the ground of its insufficiency. No other ground of exception was stated at the time and hence the exception only raises the question whether the written notice contained all that the statute requires. We think it does. In it are set forth “her claim for damages,” and are specified “the nature of her injuries and the nature and location of the defect which caused the injury.” The exceptions therefore must be overruled.

II. Upon a motion for a new trial, the defendant claims that the evidence showed the matters contained in the notice to have been incorrectly stated, particularly as to the location of the defect. That location is stated in the notice to have been “at the corner of Main and Hincks Streets in front of the dwelling-house occupied by Calvin O. Page.” The evidence showed it to have been on Main Street from twenty to thirty feet from Hincks Street. It was, however, in front of the dwelling-house of Calvin O. Page, and no other similar defect was shown to have existed at the corner of the two streets. We think the notice sufficiently indicated the location of the defect proved. The evidence also substantially supports the other statements in the notice.

HI. It is further claimed there was not sufficient evidence that any statutory officer of the town had actual notice of the defect twenty-four hours before the injury. A witness, Mr. Chandler, described the defect as a rock raised some eight or ten inches above the surface in the traveled part of Main Street about 18 or 20 feet from Hincks Street. Being asked whether he ever gave notice of the rock to any official of Bucksport, he answered “I told Mr. Snowman there was a rock there.” This was more than twenty-four hours before the injury and Mr. Snowman was then road commissioner of Bucksport. We think this sufficiently imports that actual notice was given Mr. Snowman that there was a rock in the traveled part of Main Street about 18 or 20 feet from Hincks Street, and hence that he had actual notice of the rock which caused the injury. It was not necessary that he be told the rock was a defect in the street. Notice of the thing which constitutes the defect is notice of the defect.

This testimony of Mr. Chandler, as to the notice to Snowman, was flatly contradicted by Snowman and other witnesses for the defense, but it was for the jury to decide who was correct.

IV. Another point urged by the defendant is that in her declaration the plaintiff alleged that' the municipal officers of the town had the previous notice of the defect and that, at the most, she has only proved notice to the road commissioner, an officer not named in the declaration. In other words, the town, claims there was a variance between the allegation and the proof.

This point, however, should have been made at the trial by objection to the admission of the evidence of the notice to Snowman, and again by requesting an instruction that there was no evidence of notice to any of the officers named in the declaration. The objection now urged, for the first time, does not go to the merits, of the case itself, even upon the matter of notice, as there was evidence of sufficient notice to satisfy the statute. Had the point been made at the trial, the declaration could have been amended to correspond with the evidence even after verdict. The law court, also, upon a motion for a new tidal can authorize an amendment to cure a variance, and so sustain a verdict otherwise sustainable.

V. Lastly, the point is made that there was no evidence that the subsequent written notice first above described was given within fourteen days after the injury, as required by the statute. There was no direct, explicit evidence of the time of giving the notice, but the plaintiff claims that it Avas sufficiently admitted to have been Avithin the statutory time of fourteen days. At the close of the evidence for the plaintiff her counsel said: “ We offer a copy of the fourteen days notice. I understand that, without admitting that it is a complete notice, it is admitted that the toAvn officers received a copy like this one we offer.” The defendant's counsel said: “I understand that the toivn officers received a copy of that notice. I object to the notice, to the sufficiency of it.” The copy was admitted, the exception noted, and the plaintiff's case closed.

It is clear that the notice AAas given, and Ave have above held that it Avas sufficient in its statements. There was no evidence or suggestion at the trial that the notice Avas not received within the fourteen days. Must the verdict uoav be set aside, and the parties and the court subjected to the burden of another trial of the case, because it Avas not more explicitly or precisely stated in the colloquy over the notice that it Avas received Avithin fourteen days? We think not. We think the point noiv made is Avithin the category of points to be made at the trial, or to be considered as Avaived, It Avas not made at the trial and no intimation was given that it would be made. Had it been made at the trial and sustained, the plaintiff would either have supplied the evidence or submitted to an adverse verdict. If not sustained, the defendant could have excepted and thus regularly and seasonably brought the question here. The point, not having been made at the trial, cannot be sustained here, even if it be otherwise sustainable.

The plaintiff may amend her declaration as herein indicated without terms, and when so amended the certificate of decision will be,

Exceptions and motion overruled.