§ 1059. Proximate cause. 1 It has been stated in preceding sections 488 that one claiming damages for a failure on the part of the public corporation to properly perform a duty imposed upon it must show by a preponderance of the evidence that the failure to perform a duty complained of was the proximate and direct cause of the injury sus tained. The same rule applies to contributory negligence. It must appear if this is claimed as a defense in order to be successful that the act of the plaintiff which is characterized as contributory negligence on his part must be the proximate cause of the injury 489 and that although there may be a concurring cause, namely the failure to perform the duty on the part of the corporation, yet, if the injury to the plaintiff is the immediate and direct result of his act or omission or that of a third person chargeable to him, he cannot recover. This question of proximate cause is usually one for a jury to consider upon all the facts and circumstances in the case as presented to them.491 The rule as ordinarily interpreted does not require one injured to be absolutely free from any negligence, for such a requirement would impose on him the exercise of extraordinary care.192 City of Anaconda, 26 Mont. 128, 66 Pac. 756; Pettingill v. Town of Olean, 65 Hun, 624, 20 N. Y. Supp. 367; Russell v. Town of Monroe, 116 N. C. 720, 21 S. E. 550; City of Dallas v. Myers, (Tex. Civ. App.) 64 S. W. 683; Hill v. Town of New Haven, 37 Vt. 501; Gordon v. City of Richmond, 83 Va. 436, 2 S. E. 727. 488 See §§ 952 and 993, ante. 489 City of Denver v. Johnson, 8 Colo. App. 384, 46 Pac. 621; Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238; City of Rock Falls v. Wells, 169 Ill. 224, 48 N. E. 440; Hayes v. Inhabitants of Hyde Park, 153 Mass. 514, 27 N. E. 522, 12 L. R. A. 249; Monje v. City of Grand Rapids, 122 Mich. 645, 81 N. W. 574; Brennan v. City of St. Louis, 92 Mo. 482, 2 S. W. 481; Pinnix 490 City of Macon v. Dykes, 103 Ga. 847, 31 S. E. 443; Town of Salem v. Walker, 16 Ind. App. 687, 46 N. E. 90; Kidder v. Inhabitants of Dunstable, 73 Mass. (7 Gray) 104; Howe v. City of Lowell, 101 Mass. 99; Card v. Columbia Tp., 191 Pa. 254, 43 Atl. 217. 491 Benedict V. City of Port Huron, 124 Mich. 600, 83 N. W. 614. See, also, § 1057, ante, and § 1066, post. 492 Town of Grayville v. Whitaker, 85 Ill. 439; McFail v. Barnwell County, 57 S. C. 294, 35 S. E. 1060. Defenses; statute of limitations; lack of funds. The right to recover may be limited through the operation of a statute of limitations, irrespective of the question of negligence or contributory negligence and where a provision exists applicable to the class of cases under consideration, the action must be brought within the time limited or the right of recovery will be barred.493 Lack of funds. Lack of funds has been urged in some cases as a defense in actions growing out of the failure of a public corporation to properly perform its duty in respect to the repair of public highways. The obligation, as will be remembered, requires the exercise only of ordinary care and diligence on the part of the corporation. Municipalities, as a rule, have ample funds or sources of revenue with which to perform this duty. The defense may be urged either where there is a total lack or want of funds and no means of obtaining them or where the fund for this particular purpose has been temporarily depleted and there was at the time of the accident no funds or no present means of obtaining them in the manner particularly provided by law. Where the defense is made under the first condition it is generally regarded as a sufficient one and no recovery can be had, but the cases almost universally hold where the defense is urged under the second 562; Cowie v. City of Seattle, 22 493 Bliven v. Sioux City, 85 Iowa, V. 494 Such a provision is unconstitutional; a recovery may be had for damages which have accrued to property within five years. 494 Weeks v. Inhabitants of Needham, 156 Mass. 289, 31 N. E. 8; Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 4 L. R. A. 834; Winship v. Town of Enfield, 42 N. H. 197; Stone v. Town of Poland, 58 Hun, 21, 11 N. Y. Supp. 498; Lane v. Town of Hancock, 67 Hun, 623, 22 N. Y. Supp. 470; Quinn v. Town of Sempronius, 33 App. Div. 70, 53 N. Y. Supp. 325; Boyce v. Town of Shawangunk, 40 App. Div. 593, 58 N. Y. Supp. 26; Chartiers v. Langdon, 114 Pa. 541; Russell v. Men of Devon, 2 Term. R. 667. condition, it is not good and a recovery can be had if the other elements of actionable negligence exist.495 If a public corporation is temporarily without means for making necessary repairs, its duty then is to prevent the use of the defective highway or give warning or notice of its dangerous condition. The right to recover whether given by statute or based upon some common-law principle may be dependent upon the service of notice by the one injured, or someone on his behalf, 96 to the corporation, of the injury sustained. This condition may be either required by general law or by special charter provisions in particular instances.497 The purpose of such a notice is to inform the 495 Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; Albrittin v. City of Huntsville, 60 Ala. 486; City of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243; City of Mt. Vernon v. Brooks, 39 Ill. App. 426; City of New Albany v. McCulloch, 127 Ind. 500, 26 N. E. 1074; Moon v. City of Ionia, 81 Mich. 635, 46 N. W. 25; Lombar v. Village of East Tawas, 86 Mich. 14, 48 N. W. 947; Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284); Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 4 L. R. A. 834; Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. 756; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43; Whitlock v. Town of Brighton, 2 App. Div. 21, 37 N. Y. Supp. 333; Hover v. Barkhoof, 44 N. Y. 113; Village of Shelby v. Clagett, 46 Ohio St. 549, 22 N. E. 407, 5 L. R. A. 606; City of Belton v. Turner (Tex. Civ. App.) 27 S. W. 831. 496 Morgan v. City of Des Moines (C. C. A.) 60 Fed. 208. Iowa Act Feb. 17, 1888 (p. 31) requiring service of notice on a city within 90 days from injury as a precedent to a right to recover applies to infants as well as adults. Mitchell v. City of Worcester, 129 Mass. 525; Dalton v. City of Salem, 139 Mass. 91, 28 N. E. 576; May v. City of Boston, 150 Mass. 517, 23 N. E. 220; Terryll v. City of Faribault, 81 Minn. 519, 84 N. W. 458; McDonald v. City of Ashland, 78 Wis. 251, 47 N. W. 434. 497 Newman v. City of Birming ham, 109 Ala. 630; City of Denver v. Barron, 6 Colo. App. 72, 39 Pac. 989; Walpole v. City of Pueblo, 12 Colo. App. 151; Giffen v. City of Lewiston, 6 Idaho, 231, 55 Pac. 548. Special charter provision construed and held only to apply to damages upon which actions ex contractu may be brought. Kennedy v. City of Des Moines, 84 Iowa, 187; Lamb v. City of Cedar Rapids, 108 Iowa, 629; D'Amico v. City of Boston, 176 Mass. 599, 58 N. E. 158. The statute does not apply to a contractual relation. Norwood v. City of Somerville, 159 Mass. 105; Carberry v. Inhabitants of Sharon, 166 Mass. 32; Barclay v. City of Boston, 173 Mass. 310; Monje v. City of Grand Rapids, 122 Mich. 645, 81 N. W. 574; public corporation of the fact of the injury that it may investigate and prepare a defense at a time when proper and accurate information is more easily obtained in respect to the actual conditions attending the injury that it may better defend itself against fictitious or exaggerated claims. The fact should never be disregarded even where a liability is imposed upon a public corporation that it is, primarily, a governmental agent organized for the benefit and advantage of the community at large and that all reasonable means should be used to enable it to successfully protect itself against a loss of public funds whether through their dishonest appropriation or by the paying of false claims on account of personal injuries received. The notice under discussion must be distinguished from that required by law in some jurisdictions relative to the existence of the defect. The two are entirely different and sustain no relation to each other.49 498 A law which requires notice of the injury to be served in order as precedent to the right of recovery is regarded as mandatory in its provisions, not merely directory,499 and the fact of notice as thus required is. Rodda v. City of Detroit, 117 Mich. 412; Clark v. Village of Davidson, 118 Mich. 420; Doyle v. City of Duluth, 74 Minn. 157, 76 N. W. 1029. Notice should state amount of compensation claimed. Bausher v. City of St. Paul, 72 Minn. 539, 75 N. W. 745; Winters v. City of Duluth, 82 Minn. 127, 84 N. W. 788. Laws 1897, c. 248 relative to giving of notice held valid. Young v. Webb City, 150 Mo. 333; Carvin v. City of St. Louis, 151 Mo. 334; Dovey v. City of Plattsmouth, 52 Neb. 642; City of Lincoln V. O'Brien, 56 Neb. 761; Shields v. Town of Durham, 118 N. C. 450, 36 L. R. A. 293; Jones v. City of Greensboro, 124 N. C. 310; Pearson v. City of Seattle, 14 Wash. 438; Jung v. City of Stevens Point, 74 Wis. 547, 43 N. W. 513. The words "claim or damage" in a city charter providing that these must have been first presented to the city Abb. Corp. Vol. III - 25. council, apply to claims arising upon a contract and not those sounding in tort. Steltz v. City of Wausau, 88 Wis. 618, 60 N. W. 1054. An action for damages to land by the overflow of a culvert is an action of tort and a statement must be presented to the common council within the time prescribed. Sharp v. City of Mauston, 92 Wis. 629; Flieth v. City of Wausau, 93 Wis. 446; Daniels v. City of Racine, 98 Wis. 649; Ziegler v. City of West Bend, 102 Wis. 17. 498 See 1037, ante. 499 Starling v. Town of Bedford, 94 Iowa, 194, 62 N. W. 674. A failure to serve within the time limited by law cannot be waived even by the municipality. But see to the contrary, Foster v. Village of Bellaire, 127 Mich. 13, 86 N. W. 383, and Lindley v. City of Detroit, 131 Mich. 8, 90 N. W. 665. Greenleaf v. Inhabitants of Nor an affirmative matter to be pleaded and proved by the plaintiff.500 Provisions relative to the giving of notice include as a rule the elements of its sufficiency and its service. § 1062. Notice of accident and its sufficiency. The purpose of a notice being to afford the corporation an opportunity to investigate, it is, therefore, commonly required that it shall contain certain statements specific in their character and in reasonable detail concerning the time of the accident,501 the place where it occurred,502 and the nature or cause of the injury sus ridgwock, 82 Me. 62, 19 Atl. 91; Clark v. Inhabitants of Tremont, 83 Me. 426, 22 Atl. 378. Upon a failure to serve notice within the time required by law a vote of the inhabitants of the town to pay damages is a mere gratuity and not binding. Gay v. City of Cambridge, 128 Mass. 387; Griswold v. City of Ludington, 116 Mich. 401, 74 N. W. 663. Verification of the notice may be waived by a city council. Meyer v. City of New York, 14 Daly (N. Y.) 395; Kennedy v. City of New York, 34 App. Div. 311, 54 N. Y. Supp. 261; Trost v. City of Casselton, 8 N. D. 534, 79 N. W. 1071; Plum v. City of Fond du Lac, 51 Wis. 393. 500 Olmstead v. Town of Pound Ridge, 71 Hun, 25, 24 N. Y. Supp. 615; Krall v. City of New York, 44 App. Div. 259, 60 N. Y. Supp. 661; Benware v. Town of Pine Valley, 53 Wis. 527; Wentworth v. Town of Summit, 60 Wis. 281; Dorsey v. City of Racine, 60 Wis. 292. But see Kent v. Town of Lincoln, 32 Vt. 591. 501 Shaw v. City of Waterbury, 46 Conn. 263; Lilly v. Town of Woodstock, 59 Conn. 219, 22 Atl. 40. The notice need only state the daynot the hour when the injury occurred. Taylor v. Inhabitants of Woburn, 130 Mass. 494; Sherry v. Town of Rochester, 62 N. H. 346; Sullivan v. City of Syracuse, 77 Hun, 440, 29 N. Y. Supp. 105. Murphy v. Village of Seneca Falls, 57 App. Div. 438, 67 N. Y. Supp. 1013. 502 City of Denver v. Barron, 6 Colo. App. 72, 39 Pac. 989; Tuttle v. Town of Winchester, 50 Conn. 496; Cloughessey v. City of Waterbury, 51 Conn. 405; Biesiegel v. Town of Seymour, 58 Conn. 43, 19 Atl. 372; Carstesen v. Town of Stratford, 67 Conn. 428, 35 Atl. 276; Owen v. City of Ft. Dodge, 98 Iowa, 281, 67 N. W. 281; Rusch v. City of Dubuque, 116 Iowa, 402, 90 N. W. 80; Hutchings v. Inhabitants of Sullivan, 90 Me. 131, 37 Atl. 883; Lord v. City of Saco, 87 Me. 231, 32 Atl. 887; Kaherl v. Inhabitants of Rockport, 87 Me. 527, 33 Atl. 20; Veno v. City of Waltham, 158, Mass. 279, 33 N. E. 398; Conners v. City of Lowell, 158 Mass. 336, 33 N. E. 514; Fuller v. Inhabitants of Hyde Park, 162 Mass. 51, 37 N. E. 782; Donnelly v. City of Fall River, 130 Mass. 115; Cronin v. City of Boston, 135 Mass. 110; Sargent v. City of Lynn, 138 Mass. 599; Dalton v. City of Salem, 139 Mass. 91; Coffin v. Inhabitants of Palmer, 162 Mass. 192, 38 N. E. 509; Lyons v. City |