Jeanie Barclay, administratrix, vs. City of Boston

Massachusetts Supreme Judicial Court1897-02-25

167 Mass. 596

Summary · law.co

Holding. The court sustained exceptions and determined that sufficient circumstantial evidence existed from which a jury could fairly infer the plaintiff's intestate was physically and mentally incapacitated from procuring notice of the accident during her hospital stay, allowing the case to proceed despite the failure to give notice within the statutory ten-day period.

A woman suffered a hip fracture and head injury after falling on a Boston street on January 1, 1895. She was taken to a hospital by ambulance but did not communicate with her family until January 11, when the hospital notified her brother of her presence there. She died on January 15. Her administrator brought a claim against the City of Boston, but a statute required notice of the accident within ten days. The defendant argued that the plaintiff failed to provide this notice and thus forfeited the claim.

The plaintiff's defense was that the woman had been physically and mentally incapacitated during the ten-day period, which would excuse the failure to give notice. The evidence showed the woman was conscious enough immediately after the accident to provide her name, but there was no direct testimony about her condition during her hospital stay. The court found that based on the circumstances—her close family relationships, her disappearance, and the hospital's own discovery of her condition—a jury could reasonably infer that she was too incapacitated to direct anyone to send notice of the accident to the city.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether incapacity excuses failure to give statutory notice of an accident to a municipality within ten days
What standard of evidence is required to prove physical or mental incapacity—direct proof versus circumstantial inference
Whether the burden of proof permits a plaintiff to request jury consideration based on circumstantial evidence alone

Procedural posture

The defendant city raised exceptions to a trial court decision allowing the plaintiff to proceed with her claim despite the absence of timely notice.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Knowlton, J.

The question in this case is whether there was any evidence that, by reason of physical or mental incapacity, it was impossible for the plaintiff’s intestate to give notice of the time, place, and cause of the accident within ten days after it happened. St. 1894, c. 422. See Pub. Sts. c. 52, §§ 19, 21. It is well settled that, to come within the provision of the statute last referred to, it is not enough to show that the person injured was unable to give the notice in person, but it must be shown that there was such physical or mental incapacity as to make it impossible for him, by any ordinary means at his command, to procure the notice to be given. May v. Boston, 150 Mass. 517. Lyons v. Cambridge, 132 Mass. 534. Saunders v. Boston, ante, 595.

In the present case the plaintiff did hot introduce the best evidence upon the question whether her intestate was so incapacitated during the whole period of the ten days, and from all the testimony the court and jury must have been left in doubt in regard to it. But the question is not whether the best evidence was introduced, nor whether there was proof beyond a reasonable doubt, but whether there was any evidence from which it might fairly be inferred that she was incapacitated.

It appears that the deceased was a strong, healthy woman, fifty-eight years of age, who lived in Somerville, and kept house for her son and daughter. She got dinner for her son on the first day of January, 1895, and he left her in the house, sewing, at about three o’clock in the afternoon. She then disappeared, and although her son, daughter, and brother made inquiries for her at different times among her friends in Somerville and Bos ton, and at the police offices in both of these cities, and advertised in the Boston Globe in regard to her disappearance, none of them learned of her whereabouts until January 11, when her brother, who lived in East Boston, received a postal card from the city hospital in Boston, dated January 11, stating that his sister was at the hospital dangerously ill. He immediately went to see her,- and at different times from that time until her death, which occurred on January 15, she was visited by him, her son and daughter, and also by two of her neighbors. The evidence tended to show that she was suffering great pain, and much of the time was delirious, but on one or more occasions recognized her brother and her daughter, and greeted them affectionately.

It appeared that at about five o’clock on January 1-she fell on one of the public streets of Boston, and sustained a fracture of her left hip, and hit her head. She received medical treatment in a drug store, a policeman came, an ambulance was called, and she was carried to the city hospital. While at the drug store she was perfectly conscious, and gave her name. There was no direct evidence in regard to her condition from that time until January 12, but the testimony tended to show that before the accident she was living on terms of affection with her children and her brother, and that, if she had been able, she would have communicated with them to relieve their probable anxiety on account of her sudden disappearance. From all the circumstances of the case, we think the court and jury might fairly have inferred that all the time while she was in the hospital she was physically and mentally incapacitated from directing such business as causing notice of her accident to be sent to the city. Testimony from those- who knew her condition might contradict or confirm such an inference; but in the absence of such testimony we are of opinion that the plaintiff, although having the burden of proof, properly might ask the jury to believe that it was impossible for her mother to give the notice while she was in the hospital.

Exceptions sustained.