McCarthy v. Cray ( 1931 )

CARPENTER, J.

This is an action brought by the plaintiff against the defendant, as City Treasurer of the City of Providence, for injuries that she alleges she sustained on Huntington Avenue, a public highway in the City of Providence, by reason of the failure of said city to keep the sidewalk on Huntington Avenue in a reasonably safe condition.

At the trial on April 20, 1931, the jury returned a verdict for the defendant, with a special finding. A motion for a new trial was filed in due time and is now before this court on said motion.

Upon the evidence submitted in the case, it appeared that it was the contention of the defendant that no claim had been filed against the city as provided by law, and therefore the action could not be maintained. James H. ICiernan, Esq., counsel for the plaintiff, testified that he filed in the office of the City Clerk, as provided by law, on the 10th day of May, 1926, a claim, a copy of which claim was presented and introduced in evidence and marked Plaintiff’s Exhibit 1. The plaintiff contended that the accident happened on Saturday, May 8, 1926.

For plaintiff: James H. Kiernan. For defendant: City Solicitor and John T. Walsh.

On behalf of the defendant, Mr. McElroy, the present City Clerk, and Mr. Miller, former City Clerk, testified that they had searched the records of the City Clerk’s office of the City of Providence and could find no claim, or any evidence that any claim had been filed. They did not, of course, deny that the claim had been filed by Mr. Kiernan, but said that they could find no evidence of it. Upon this issue the defendant asked for a special finding, and the jury found that Harriet McCarthy, by her attorney, James H. Kiernan, did not give to the City of Providence notice of the time, place and cause of the accident complained of, within sixty days of said accident. From the record it appears that upon this issue, and this issue alone, the jury returned a verdict for the defendant.

The Court feels that upon the evidence that was submitted the jury were not justified in finding that Mr. Kiernan did not file the notice that he positively testified that he did file, and feels that substantial justice has not been done in this case.

Therefore, the motion for a new trial is granted.