#### JOSEPHINE HARTSELL v. CITY OF ASHEVILLE and C. W. BEALE and Wife.

(Filed 30 September, 1914.)

1. Cities and Towns — Claims for Damages — Statutory Notice — Reasonable Opportunity.

A charter requirement that notice to a city must be given within piinety days after the occurrence of an injury for which it is claimed that the city is responsible through its negligence, is a valid one, and failure to give this notice will bar a plaintiff’s right of recover}’, unless it is shown by him that it was impossible, on account of his incapacity, with the ordinary means at his hands, to give such notice'in the time required.

2. Same — Trials—Evidence—Questions for Jury.

The reason of a charter requirement that notice be given within ninety days of a claim of damages arising from its negligence is that within that time opportunity will reasonably be afforded the claimant to give such notice; and in this case, there being evidence tending to show that the plaintiff was in a hospital for eight week's, absolutely helpless, and practically so for three months, and longer, it is held that the question should be submitted to the jury for their finding as to whether or not the plaintiff had been afforded a reasonable opportunity to give the notice in the time required.

PetitioN to rebear this case, reported 164 N. C., 193.

J. H. Merrimon and Merrimon, Adams & Adams for •plaintiff.

8. Gi. Bernard-and Harkins & Van Winkle for defendants.

ClaRK, C. J.

"When this case was here before, 164 N. C., 193, the Court held that, there was no liability in favor of the plaintiff against Maria Beale and her husband by reason of their ownership of the lot adjoining the sidewalk on which the plaintiff slipped and fell, to her injury, and sustained the non-suit as to the city of Asheville because the plaintiff had 'failed to offer sufficient evidence of an excuse for failure to file notice within ninety days of her claim, as required by the charter of the city.

The petition to rehear does not allege any error as to Mrs. Beale and husband, and is directed solely to the holding that *634 there is no evidence to submit to the jury to excuse plaintiffs failure to present tbe notice to tbe city witbin tbe required ninety days.

Tbe requirement tbat sucb notice shall be presented witbin ninety days is a reasonable one and its legality is not controverted. But in Terrell v. Washington, 158 N. C., 298, it was said tbat to excuse a strict compliance witb tbis requirement, “it must be shown-tbat there is sucb physical or mental incapacity as to make it impossible for tbe injured person by any ordinary means at bis band to procure service of tbe notice . . . and if there is actual incapacity, it can make no practical difference whether it is mental or physical in its nature.”

It is not necessary tbat tbe injured party should be in physical and mental condition to make sucb claim and give due notice for tbe whole period of ninety days. Tbe ninety days is prescribed witb tbe view tbat at some time witbin tbat period tbe injured party will be in condition to give tbe notice, and it should be given to permit tbe city to make prompt investigation and to avoid imposition. All tbat is necessary is tbat there should be reasonable opportunity witbin tbat time in which tbe plaintiff will be able to give tbe required notice.

On tbe former hearing, on consideration of tbe evidence, we thought tbat tbe plaintiff bad not introduced any evidence which would authorize a jury to find tbat during tbe whole ninety days she bad been under “sucb physical or mental incapacity as to make it impossible for her, by any ordinary means at band, to procure service of the notice.” But upon reconsideration of tbe testimony, we find tbat, taking her testimony to be true, tbe jury might or might not so find. She testified tbat during tbe first eight weeks in tbe hospital she was absolutely helpless, and was practically helpless for three months, and tbat she left tbe hospital only at tbe end of three months. Her daughter testified tbat her mother during tbe time she was in tbe hospital was as helpless as a baby, and remained in a practically helpless condition for two months after she came home.

We are of opinion, upon reconsideration, tbat upon all tbe testimony tbe issue should have been submitted to tbe jury,. *635under proper instructions from the court, whether by reason of her physical or mental condition the plaintiff was unable at any time during the ninety days to give, or to cause to be given, to the city notice of her injury.

Petition allowed.