54 Vt. 172 | Vt. | 1881
The opinion of the court was delivered by
No question was made upon the trial but what the highway described in the notice that was put in evidence by the plaintiff was one that the defendant town was under obligation to keep in repair.
The objections made to the notice are, that it does not sufficiently designate the place of the accident; nor sufficiently point out the respect or particular in which the highway was insufficient and out of repair. The place where the accident happened is described as being in said highway: “ about six feet southeasterly from the southeast corner of the Sadawga House, occupied as a hotel by Wm. L. Robinson & Son, in the village of Sadawga.” That description was sufficiently definite. It could not have been made more accurate except by the aid of actual measurement, which has never been required.
In the description of the insufficiency of the highway, it is said:
A great deal of confusion has resulted from the manner in which this cause was tried in the County Court. It appeared that there was a highway extending westerly from the one described in the notice ; and the obstruction which constituted the insufficiency complained of was near the junction of the two highways. The plaintiff claimed that the road extending westerly was a branch of the one described in the notice that had been adopted by the town ; and they were obliged to keep it in repair; and that if the obstruction should be found to have been in that highway the town would be liable. The question whether the town had adopted that highway was controverted.
Some of the requests and a portion of the charge were predicated upon the supposition that the obstruction might be found to have been in that highway ; and what was said by the court upon that branch of the case was in explaining and defining the rights and liabilities of the parties if it should be so found.
The verdict of the jury has rendered all that transpired in reference to that highway wholly immaterial. It is settled by that verdict that the obstruction was in the highway described in the notice. The case is to be considered and passed upon in this court as if no other highway had been in question but the one described in the notice. Hence all that portion of the arguments of the learned counsel and the charge of the court that has reference to the highway that it was claimed had become such by adoption, need not be considered. This view eliminates all of the defendant’s requests that he now claims were not complied with, except the 8th, which was, that Robinson, the occupant of the hotel, had the legal right to place the obstructions as they were placed, to protect his own property. The court charged that Robinson had the right to protect his piazza against being run on to by teams in a proper way ; and left it to the jury to say whether the way in which he undertook to protect it was proper or not. This was as far as the defendant was entitled to have the request complied
The authorities cited are ample authority to sustain the charge upon such a state of facts.
The judgment of the County Court is affirmed.
