Breen v. Town of Cornwall

Two questions are presented by this appeal: first, whether the notice contains a sufficient description of the cause of the injury sustained by the plaintiff; and second, if it does, whether it describes the same cause of injury as that alleged in the complaint.

The Act of 1895 (Chap. 172), amending § 2673 of the General Statutes, requires, as a condition to the maintenance of such an action, that the plaintiff shall give to the defendant a "written notice of such injury and a general description of the same, and the cause thereof, and of the time and place of its occurrence."

"The sufficiency of the notice is to be tested with reference to the purpose for which it is required. If sufficient for that purpose it is a good notice." Budd v. Meriden ElectricR. Co., 69 Conn. 272, 285. The place, cause and nature of the injury are sufficiently stated in the notice when they are "truly described with such a reasonable degree of certainty that ordinary men in the exercise of ordinary intelligence under the circumstances can learn from the notice the nature of the injury, and be able to ascertain by the use of ordinary diligence the place where it occurred and the cause that occasioned it." Gardner v. New London, 63 Conn. 267,272; Budd v. Meriden Electric R. Co., supra; Dean v. Sharon,72 Conn. 667, 674. In Lilly v. Woodstock, 59 Conn. 219, the notice having stated that the plaintiff was injured by means of a defective road (the place of the accident having been properly described), and the nature of the injury having been described as the breaking and destruction of the plaintiff's carriage, and the bruising, wounding and laming of his person, — it was held that the words, "all said injuries caused by said defective road, the defect consisting of a dangerous embankment," constituted a sufficient description of the cause of the injury to comply with the requirements of the statute.

The notice before us describes the place where the injury occurred as "on that ledge of rocks in the road," "near the ruin of an old house," on a road the name of which is given, and between a turnpike and a house the names of which are given. It states they were nearly thrown out before they "came to those rocks," and so were driving carefully when the accident occurred. This statement, with what precedes it, renders it sufficiently clear that the accident which caused the plaintiff to be thrown from her carriage, happened when they came to those rocks, the particular location of which had been already described.

Without repeating here all of the language of the notice descriptive of the cause of the injury, but reading it as we think ordinarily intelligent persons would understand it, the notice states that the plaintiff and her friend while driving along the "Cook Road" between the Warren Turnpike and Richard Brophy's house, drove upon a ledge of rocks in the highway near the ruins of an old house, and thereby their wagon was broken and the plaintiff was thrown out upon the ledge of rocks and very much injured.

This is a sufficient statement of the cause of the injury to meet the requirements of the statute. It is not only a statement that the cause of her injury was being thrown upon a certain ledge of rocks in the highway, but a sufficiently clear statement that the cause of her being thrown from the wagon was the driving upon these rocks and the breaking of the wagon.

The notice further describes the cause of the injury by describing how the ledge of rocks caused her to be thrown out, in the statement that the cause of the accident was the condition of the road, and that the road was in a terrible condition because no dirt had been placed upon it, and that the bushes and grass hid the holes, rocks, and other dangers.

The words "cause of the accident" are used in the notice as synonymous with the cause of the injury.

The complaint alleges the same cause of the injury as that described in the notice. In both the complaint and the notice the cause of the injury is fairly described as the driving upon certain rocks in the highway at a described place, by which the plaintiff's wagon was broken, and by the driving upon which rocks and the breaking of the wagon the plaintiff was thrown out upon the rocks and injured.

Because the complaint — in stating that the wheel of the plaintiff's wagon was caught in the crevices or holes in the rocks upon which they ran — describes the manner in which the wagon was broken and the plaintiff was thrown out, with greater particularity than is done in the notice, it cannot be said to describe a different cause of the injury. A general description of the cause of the injury in the notice, which is not in itself a part of the pleading, does not prevent the plaintiff from alleging such cause more specifically in the complaint, nor from proving at the trial the particular facts so alleged. Budd v. Meriden Electric R. Co., supra. The court erred in sustaining the defendant's demurrer to the complaint.

There is error, the judgment is reversed and the case remanded to be proceeded with according to law.

In this opinion the other judges concurred.