69 Vt. 364 | Vt. | 1897
The plaintiffs evidence tended to show, that, while riding over a culvert which the defendant was bound to maintain and keep in repair, his horse stepped into a hole that had been there about forty-eight hours, caused by the spreading of the stone slabs covering the culvert, and the dirt covering the same working through. The defendant’s evidence tended to show, that there was no hole in the
This evidence tends to show that the defect causing the injury complained of, was so far latent, sudden and unforeseen that its occurrence could not reasonably have been anticipated and guarded against, and that the accident occurred without fault on the part of the town. The evidence fairly presented for the consideration of the jury the question, whether the town officers charged with the duty of keeping the culvert in repair ought, as careful and prudent men, to have anticipated that such a defect would be likely to occur and guarded against its occurrence; and, if not negligent in this respect, whether, by the exercise of due care and prudence, they could, or ought to, have seasonably discovered the defect and remedied it, and these questions should have been submitted to the jury.
When a defect in a highway is latent, and when a sudden and unforeseen defect occurs without fault on the part of the town, the town is not chargeable for the damage resulting from such defect, unless it has been in default in respect to getting seasonable knowledge of the defect, or unless, having such knowledge, it was reasonably practicable to have repaired the defect or put up a warning or barrier before the happening of the accident. In such cases, the questions, whether the defect occurred without the fault of the town and whether the town was wanting in care and prudence in not seasonably discovering and repairing the defect, are for the jury. Campbell v. Fair Haven, 54 Vt.
In Mullen v. Rutland, 55 Vt. 77, the defendant’s surveyor built a barricade to prevent travelers from driving upon a bridge that was being repaired; and the court held, that, if the town performed its full duty and built a barricade at nightfall sufficient in height and strength, and in the right place, and had no knowledge or reason to suppose or suspect that some unforeseen casualty would happen to it, the town would not be liable.
In Prindle v. Fletcher, 39 Vt. 255, the plaintiff was traveling upon a highway, when the ground gave away under his horse, through some latent defect which was not known and was not discoverable; and the court, in holding that the defendant was not liable, in the course of the opinion, said: “It was not the design of the statute to require impossibilities of the town, and to make it the absolute insurer against all accidents and injuries caused by defects in highways. But it was designed to hold the town to insure against accidents and injuries caused by defects existing through any fault of the town.”
The plaintiff was permitted to show by his sons the complaints he made of pain that he was suffering at the time he made the complaints. This testimony was properly received. It is not necessary that such complaints be made to a physician or nurse, in order to render them admissible. Knight and wife v. Smythe, 57 Vt. 529; State v. Howard, 32 Vt. 380; Kent v. Lincoln, 32 Vt. 591; Drew v. Sutton, 55 Vt. 586; State v. Fournier, 68 Vt. 262.
ftidgment reversed and cause remanded'.
