CURRIER v. CONCORD

Whether the information contained in the statement required by G. L., c. 75, s. 7, of the exact place where damage to a traveler on a highway is received, is such as to enable one, by the exercise of reasonable diligence, to locate the place, is a question of fact for the trial term. At a hearing before a committee of the city government upon the plaintiff's claim for damages caused several months before by a defective highway, the committee's failure to object to the sufficiency of the notice served upon the city is not a waiver of the city's right to raise that objection.

Per Curiam.[fn*] [fn*] See foot-note on page 22.

The reported finding is, in effect, that the place of the alleged accident was not so designated in the plaintiff's statement that it could be found in the exercise of reasonable diligence by the defendants' officers without further information from the plaintiff. The statement was, therefore, insufficient. "If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can, by the exercise of reasonable diligence and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient because it fully answers the purpose of the statute. Whether upon the information contained in the statement the place could be found by the exercise of reasonable diligence is a question of fact, to be determined upon the evidence by the court at the trial term." Carr v. Ashland, 62 N.H. 665, 669.

The defendants have not waived their right to the statement required by law. G. L., c. 75, s. 7. The plaintiff claims that by the action of the committee of the city government she was induced to forbear bringing a petition for leave to file a statement within six months from the date of her accident, as provided by G. L., c. 75, s. 9. But such a petition would be of no avail unless it appeared that she was unavoidably prevented from filing a statement with the city clerk within the ten days allowed for that purpose by section 7. The action or non-action of the committee at the time of the hearing upon her claim, or afterward, did not prejudice her in filing a statement five months before. Moreover, it does not appear that the committee was called upon, by anything that occurred at the hearing, to declare the insufficiency of the statement, or even that they were aware of it. The hearing was apparently in the nature of an inquest to ascertain whether the city was liable.

Plaintiff nonsuit.

All concurred.