Bagley v. Town of Ludlow, 41 Vt. 425

Bagley v. Town of Ludlow

41 Vt. 425 | Vt. | 1868

The opinion of the court was delivered by

PiERPOiNT, C. J.

This is an action brought to recover damages lor an injury resulting from an alleged insufficiency of a highway.

The questions presented arise upon the refusal of the court to charge as requested, and the charge as given.

The defendants requested the court to charge the jury, that if the log that the plaintiff’s wagon came in contact with, resulting in the injury complained of, lay wholly without the limits of the highway, as originally surveyed and laid out, it did not constitute in law an insufficiency of the highway. The court declined so to charge. The exceptions show that the- log did lie wholly without the original surveyed limits, of the highway. The case *432also sliows that tlie town and the public had for more than forty years treated as highway the place where the log lay, and for some distance beyond and outside of it, the same as if it had all been within the original survey and location of the highway; this being so, the place where the log lay was as much a part of the public highway that the town was bound to keep in sufficient repair for public travel, and for injury upon which by reason of its insufficiency they were equally liable, as if it was embraced within the original survey.

This principle has been so long and by so many decisions recognized and established as law in this state, that neither argument nor authority are now required to support it, and there was no error in refusing this request.

The defendants also requested the court to charge the jury that if the log lay wholly .upon the grass, and was of the size and in the position which, the defendants’ testimony tended to prove, it did not constitute, in law, an insufficiency of the highway for which the defendants arc liable. The court did not so charge.

It appears that the log lay within and upon that part of the highway that had been worked, prepared, and appropriated to the public use for travel, and was between the ditches. That at the outer margin of this wrought part of the highway, and close to the ditch, was a strip of land upon which the grass grew. It was a point in controversy at the trial before the jury, whether the log-lay wholly upon the grass ground or only partly upon the grass.

It is difficult to see how the question, as to whether the log constituted an insufficiency of the highway, can be determined as a matter of law, by the fact that there was grass growing under or around it, or not. The fact that grass grew there was only a circumstance tending to show that there was not as much-travel over that precise point as there was nearer the center of the road bed; but whether the log in that position rendered the road insufficient or not, can not be determined as a matter of law by any such circumstance.

The fact that the log lay upon the road bed, or that part of the highway that the town had prepared for public travel, that had *433long been in public use, and that the public had the right to travel over, and the right to presume was at all times kept in sufficient repair for that purpose, distinguishes this case from the numerous cases, in this state and the neighboring states, where injuries have resulted from defects or obstructions outside of the road bed, either in the ditches or on the margin of the highway; also from that class of cases, in the other states, where the injury was occasioned by some object in or upon the road bed, with which the person injured did not come in actual contact.

This case presents the simple question, whether this log, lying where it did, rendered the highway insufficient; • and that, under the circumstances as developed by the bill of exceptions, is clearly a question of fact, to be determined by the jury under proper instructions by the court.

The only remaining question is, did the court give the jury proper instructions ? The counsel for the defendants insisted, and argued to the jury, that they ought to judge of the question as they or any other persons of common and ordinary prudence and judgment would, if they or such other persons had stood at that point on the afternoon previous to the accident, and had had their attention directed to the question whether it was, or was not, careless to permit that log to lie where it did. The court, in the charge, instructed the jury that this was not a proper rule or criterion ; “ that in order to form a proper judgment in that respect, the jury should place themselves in contemplation of the place and log, with reference to the circumstances as developed by this case, such as the darkness, the turning round of the team, the manner in which the accident occurred, and the accident itself.”

The question was not, were the officers of the town careless in permitting the log to remain in the highway, but was the highway insufficient with it there.

The rule, as contended for by the defendants, excluded from the consideration of the jury everything except what could be seen when standing in the highway in view of the log, in broad daylight. This criterion, we think, is altogether too narrow and limited. A man standing there in the daytime might think that the log did not make the road insufficient, because there was an *434abundance of room to pass elsewhere, and the traveler seeing it could always avoid it; and again he might think the log was not sufficiently large to cause any injury if a traveler should come in contact with it; but the public have the right to travel in the night as well as in the daytime, and are often compelled to, and it is the duty of the towns to keep their roads in a reasonable state of repair for travel both by night and day, and the public have a right to presume they are so. Hence, in judging of this question, darkness is a proper element to be taken into the account. The same man standing in the same place in a dark night, knowing that the log was in the highway, but being unable to determine its precise locality, or the locality of the surrounding-objects, might come to a very different conclusion as to the propriety and safety of permitting it to remain there, or the probability of a traveler coming in contact with it, who was ignorant of its being there.

The principal objection that has been urged to the charge of the court as given, is that the jury were permitted to consider the fact that the injury had actually resulted from the plaintiff’s wagon coming in contact with the log, in determining the question of the sufficiency of the highway. In settling this question, it is necessary for the jury to decide whether the object complained of is of sufficient magnitude to produce an injury in case the • traveler comes in contact with it, and certainly there can be no more satisfactory evidence on this point than the effect produced when a party comes in contact with it. In Kent v. Lincoln, 32 Vt., 591, evidence of the effect produced upon wagons driven by other persons, that came in contact with the obstruction complained of, was held admissible to show the insufficiency of the highway.

No objection is made to the charge on the ground that it was not sufficiently full and explicit upon the point, but that it submitted certain elements to the jury to be considered by them that ought to have been excluded, and probably only so much of the charge on this point was inserted in the bill of exceptions as was necessary to enable the defendants to raise that question.

*435We find no error in tbe trial below. Tbe application for a new-trial on tbe ground that tbe verdict was against evidence, being virtually abandoned, is dismissed.

Tbe judgment of tbe county court is affirmed.