Bigelow v. Town of St. Johnsbury

92 Vt. 423 | Vt. | 1918

Lead Opinion

Watson, C. J.

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, 86 Atl. 804; Wentworth v. Waterbury, 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 *432the bank directly above and over the culvert. If the affirmative of this was established as a fact, then the questions raised concerning the approaches to the culvert became immaterial, and the defendant’s liability depended upon whether it be shown that the culvert was insufficient for lack of a railing or guard suitable to the place and conditions. On this question the evidence was not all one way, but much of it tended to show such insufficiency, and it was a question for the jury.

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*433tioned the day after it went over the bank, and repaired it. He testified that he found the brakes loose and he adjusted them, took them up; that they were loose from the natural wear, but nothing serious was the matter with them, and they could be used by allowing for the wear. Yet it could not be said, as a matter of law, that such defective condition of the brakes constituted any part of the cause of the accident; for, as already seen, according to the testimony of several witnesses, the car, at the time of the accident, was running very slowly, and one witness, who saw the ear before and at the time it went over the bank, said it “was either running extremely slow or practically at a standstill." This evidence, if believed, shows that the brakes were working well enough so that the decedent had full control of his car all the time until it tipped over the bank, after which the brakes could not have been effective, even though in good working condition.

"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, 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 *434result; if a person injured is, in consequence thereof, bereft of his reason, and the injuries result in his death twenty-one days after the occurrence of such injury, no action can be had or maintained, under the statute, for the benefit of the next of kin, because notice was not given within twenty days of the time of the injury, during all which time the injured person was yet alive. An absurd purpose is not to be attributed to the lawmakers, and a construction leading to an absurd consequence must always be avoided. In re Howard’s Estate, 80 Vt. 489, 68 Atl. 513; Morse v. Tracy, 91 Vt. 476, 100 Atl. 923. Moreover, it is not clear that any change in the law was intended; and the rule is, that changes in a revision of statutes will not be regarded as altering the law when it is well settled by plain language in the statute or by judicial construction, unless it is clear that such was the intention. Clark v. Powell, 62. Vt. 442, 20 Atl. 597; Stearns v. Graham, 83 Vt. 111, 74 Atl. 486.

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

Taylor, J.

(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 *435or guard suitable to the place and conditions is not questioned, and I can readily agree with the majority that the defendant’s liability depends upon whether it be shown that the culvert in question was insufficient in this regard; but I cannot agree that the evidence has any such tendency. I conceive the law to be that, to establish liability, there must be some evidence fairly tending to show that the railing was required to make the culvert safe for travelers. I find no evidence connecting the culvert with the accident. The condition of the roadbed was in no way affected by the presence of the tile through the fill. The accident would have happened in the same manner and for the same reasons if the culvert had not been there, or being there, if it had extended to a point outside the limits of the highway. In short, the presence of the culvert is in no way connected with the happening of the accident, and the railing is not shown to have been required because of the culvert, but for a wholly independent reason, as to which there is no liability. I am forced to the conclusion that the defendant’s motion for a directed verdict should have been sustained.

Powers, J., concurs in the dissent.