| Vt. | Nov 8, 1918
Lead Opinion
The defendant contends that the culvert in question had no approaches, within the meaning of the law, and consequently the plaintiff must show that the defect which caused the death of the decedent was in the drain pipe itself and not in any part of the dirt highway which extends over it; that, unless the defect was in the pipe itself, it was not an insufficiency of the culvert which caused the accident. But in this contention the defendant fails to recognize the possibility of liability upon the evidence because of an insufficiency of the culvert for want of a railing or guard suitable to the place and conditions. If the cause of the accident was such insufficiency, without any negligence on the part of the decedent contributing thereto, the defendant is liable. Castle v. Guilford, 86 Vt. 540" court="Vt." date_filed="1913-05-12" href="https://app.midpage.ai/document/castle-v-town-of-guilford-6586322?utm_source=webapp" opinion_id="6586322">86 Vt. 540, 86 Atl. 804; Wentworth v. Waterbury, 90 Vt. 60" court="Vt." date_filed="1916-01-18" href="https://app.midpage.ai/document/wentworth-v-town-of-waterbury-6586605?utm_source=webapp" opinion_id="6586605">90 Vt. 60, 96 Atl. 334.
The evidence particularly shown or referred to in the above statement, was such as to entitle the plaintiff to go to the jury on the question as to whether the decedent’s car did not go over
The evidence to which reference is made in the preceding paragraph, considered in the light most favorable to the plaintiff, as it must be on questions raised by the motion for a verdict, tended to show, also, that the decedent was in the exercise of the requisite degree of care at the time of the accident, with reference to the place, manner, and speed of driving his car, thus making it a question for the jury to determine.
It is said in particular under this head, however, that the decedent had no right to drive his car (a) because of the condition of his eyes, and (b) because of the condition of the brakes to his car. The only evidence to which our attention is called touching the condition of his eyes is that of a witness who testified that the decedent, in a conversation with her some three or four weeks before the accident, said: "When I meet a car the reflection is so strong on the windshield that it reflects on my glasses, and it bothers me to see the road.” And further said he did not know but he would have to stop driving nights, or something to that effect. The declaration quoted contains all there is of force as evidence concerning the condition of decedent’s eyes, and the same might truthfully be said by any one wearing glasses when driving an automobile. Yet glasses are so commonly worn by persons engaged in such work as to give the declaration shown, standing alone as evidence on this question, and viewed in its most favorable light for the plaintiff, too slight force to warrant a court in ruling, as matter of law, as here requested. Besides, there was no evidence tending to show that at the time of the accident the decedent’s vision was affected in the way mentioned in his previous declaration to the witness.
Concerning the condition of the brakes, the only evidence in the case bearing thereon and noticed in defendant’s brief, is the testimony of one Goss, who had charge of the repair shop connected with a garage at St. Johnsbury. He took the decedent’s car from the place of the accident to the garage men
"What we have said in the last paragraph is equally conclusive against the defendant’s contentions that a verdict should have been ordered because the decedent was guilty of contributory negligence, in that he violated the statute (P. S. 4094, amended by No. 147, Acts of 1912), in not providing his car with an adequate brake; and that a recovery is precluded by the fact that, though approaching a curve, he did not have his ear under perfect control, as required by P. S. 4094 as amended by No. 141, Acts of 1910. Let it suffice that, in view of the evidence, neither question could be ruled as a matter of law.
The fourth ground of the motion, namely, that notice of the accident was not given as required by law, is pressed upon the change in the wording of the statute from what it was when the, ease of Eames v. Brattleboro, 54 Vt. 471" court="Vt." date_filed="1882-02-15" href="https://app.midpage.ai/document/eames-v-town-of-brattleboro-6581748?utm_source=webapp" opinion_id="6581748">54 Vt. 471, was decided. Then, the statute read: “That nothing in this section shall be. construed to apply to any ease where the person injured shall in consequence thereof be bereft of his or her reason." Acts 1874, No. 51. In the revision of 1894 (V. S. 3493), the statute, by change of wording, was made to read as it now does: “but the provisions in relation to notice shall not apply to a person who in consequence thereof is bereft of reason.” It is argued that by this change persons financially injured through the death of their next of kin must give notice the same as they would be required to give if they were themselves physically injured. The absurdity of such a construction is manifest from its logical
This in effect disposes of all the substantial grounds argued why a verdict should have been ordered, and the motion was properly overruled.
Judgment affirmed.
Dissenting Opinion
(dissenting). I am unable to agree that there is any evidence fairly tending to show actionable negligence. It must be conceded that there was evidence tending to show that the railing as such was defective; that the car went over the bank at a point directly over the culvert, treating the tile drain through the fill as such; and that a suitable guard rail at that point would have averted the accident. Still an important part of the case to establish liability is lacking. In no view of the evidence was the railing a part of the culvert or in any sense appurtenant thereto. All agree that the fill was not an approach to the culvert, so our cases holding towns liable for insufficient guarding of approaches are not in point. As I view it, the evidence tended to show no more than that the fill created such a situation that the statute (G. L. 4534) required the defendant to erect and maintain a suitable railing. But towns are not liable in damages for negligence in this regard. Moody v. Town of Bristol, 71 Vt. 473, 45 Atl. 1038. It is only for insufficiency or want of repair of a bridge or culvert that the statute gives a right of recovery. G. L. 4615. That a culvert may be insufficient, in contemplation of the statute, for lack of a railing