Bates v. Town of Sharon

45 Vt. 474 | Vt. | 1873

The opinion of the court was delivered by

Peck, J.

The question put to .Noyes by the plaintiff’s counsel, whether the gullies had the appearance of having been washed out recently or not, and his reply, that he should think they had been there, from the appearance, for several days, and a similar answer from the plaintiff to a like question, were proper. The general rule is, that the opinions of witnesses, except upon questions of art, science, and skill, are not admissible. But the rule has its exceptions. Where the facts are of such a character as to be incapable of being. presented with their proper force to any one but the observer himself, so as to enable the triers to draw, a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed, to a certain extent, to add his conclusion, judgment, or opinion. The evidence comes within this exception to the rule.

On the question pertaining to the charge, the defendant’s counsel has entered upon a discussion much beyond the scope of the case presented by the exceptions. It is only necessary for the court to decide the question involved in relation to which the defendant took exception at the trial. The case states that “ the defendant excepted, not to the charge as given, but to not charging according to the third request ” otherwise than as shown by the exceptions. The third request to#charge was this: “ That the town is not liable in this case unless the jury believe that, under the circumstances proved, the town ought to have repaired the defect in the highway before the accident happened, and had reasonable opportunity to do so ; and that, if the town could have no such notice and reasonable opportunity as would have enabled them to repair it, the defect was not one for which the town was liable.” This request assumes as matter of law that if the town had not had reasonable opportunity to repair the defect in tlie highway before the accident happened to the plaintiff, the town is not liable, and that the verdict should be "for the defendant, irrespective of whatever else the jury might find from the evi- . dence in the case. This ignores, or completely repudiates, the idea of any obligation on the part of the town to put up and maintain across the road a barrier to warn travelers that the road at the defective place in question, by reason of its dangerous condition, was not to be traveled ;■ and to provide a side-way, with proper guides to turn the travel from the dangerous place in the road, and to direct it to the side-way. If the county court had charged according to the third request, they could not, without having the charge repugnant, have recognized in the charge this duty on the part of the town, as they did, to provide a side-way, with proper guides put up to indicate to travelers that it was substituted for the time being, for the highway around the defective place. The accident to the plaintiff happened on the first day of April, on Friday. The evidence on the part of the defense was, that the highway surveyor of the district, on the Tuesday or Wednesday next before the accident, examined the road at the place in question, and found it washing out; and coo eluded it best to divert the travel upon a side-way which he opened for that purpose, where the side-way had been used the fall before, when • this same piece of road was out of repair, in the field around this bad place. The theory of the defense, so far as it relates to the omission of the town to repair the few rods of road in question, is, that it was impracticable to do it until the frost' should come out of the ground; and hence that the town had not had reasonable time to repair it. It is conceded in argument that it was not claimed 'at the trial that the road was in ‘sufficient repair. If the town was excusable upon this ground for thus delaying the repairs, it is manifest that it was the duty of the town to provide a side-way in the meantime, and turn the travel off the highway, around the bad place, especially as it appears that it was practicable to do so. But whether it can be assumed as matter of law that such was its duty, or not, it would have been error for the court to have assumed as matter of law that no such duty rested upon the town, as they must have done if the defendant’s third request had been granted. Upon this ground the defendant’s request was properly denied.

Upon another ground it is manifest that there was no error in the dénial of this request, of which the defendant can complain. The court left it to the jury upon the evidence, to say whether the town had properly performed its duty in the manner in which it provided the side-way and guided the travel upon it; and in that connection told the jury that if the town had provided such *a way, and had made it sufficiently obvious to the traveler, it had relieved itself from liability to the plaintiff in respect to that bad place in. the road. Whether this is strictly correct or not, it is not a proposition to which the defendant has a right to object. This charge excused the town from all liability for the defect in the highway, if the town had done its duty in the matter of providing a side-way, and properly indicating it to the traveler. The defendant clearly could require no more than this.

Judgment affirmed.