Madden v. City of Springfield

131 Mass. 441, 1881 Mass. LEXIS 283

• Court: Massachusetts Supreme Judicial Court
• Decided: October 22, 1881
• Status: Published

Opinion

Mortor, J.

The statute provides that “ any person ” injured by a defect in a highway, shall within thirty days thereafter give notice to the town, city, place or persons obliged by law to repair the same, of the time, place and cause of the injury; such notice is a condition precedent to the right to maintain an action for the injury. St. 1877, c. 234. Kenady v. Lawrence, 128 Mass. 318. Gay v. Cambridge, 128 Mass. 387.

This provision includes infants as well as adults, a sufficient protection to the rights of infants being furnished by the further provision which permits the notice to be given in their behalf by their parents, guardians or any other person. § 4. Taylor v. Woburn, 130 Mass. 494. In the case at bar, the father of the infant plaintiff, more than thirty days after the injury, gave written notice of the injury to the defendant. It would be useless to discuss the questions whether there was a sufficient excuse for the delay in giving the notice, or whether there is a sufficient description of the place of the injury, because the notice is fatally defective in another respect. The only cause of the injury set out in the notice is that it was received “ by reason of a defect in the highway.”

In Miles v. Lynn, 130 Mass. 398, where the notice stated that the cause of the injury was “ by reason of a defect in the street,” and in Noonan v. Lawrence, 130 Mass. 161, where equivalent' words were used, it was held that the notices were insufficient under the statute. These cases are decisive of the case at bar.

Judgment on the verdict.