38 Vt. 440 | Vt. | 1866
The opinion of the court was delivered by
This case has been heard in this court upon two distinct bills of exceptions taken by the plaintiffs, in the county court, one of which has reference to the decision of that court over-ruling the motion for a new trial, and the other of which has reference to the charge given by the court to the jury on the trial.
We come nW to the plaintiffs’ exceptions to the charge of the court to the jury on the trial. The injury for which the action was brought was an injury to Mrs. Carlisle, the feme plaintiff, who was riding in a wagon with her husband at the time of the accident. The charge was, that if the husband, on the occasion of the accident, was wanting in ordinary care and skill, or was guilty of negligence or want of ordinary care in driving in the darkness of the night, or in not stopping his horse and getting out of his wagon to examine the place, and such negligence or want of ordinary care contributed in any, even the slightest, degree, to the injury, although the road was insufficient and out of repair for want of a railing or guard on its lower margin, the plaintiffs could not recover ; and that if the jury should find that Mrs. Carlisle was justified under the circumstances in jumping from the wagon as she did, and that, if she had remained in the wagon, the injury would not have happened, still, if her husband was guilty of negligence and a want of ordinary care as above stated, then the plaintiffs could not recover, although the action would survive to het\ It is not disputed that the evidence on the part of the defendants, had a tendency to show that the husband was driving an unsafe horse, and it was admitted that the night was so dark that he could not see the road, and the defendants’ evidence had a tendency to impute to him a want of ordinary care and prudence in driving in that locality at that time. The question on this part of the case is whether a lack of ordinary care and prudence on the part of the husbaud is in law, under the circumstances of the case, a bar to a recovery for an injury to the wife when she herself
If, in respect to the town, Mrs. Carlisle should he treated as responsible for the lack of ordinary prudence and care on the part of her husband on the occasion of her injury, the charge of the court
Judgment of the county court for the defendant affirmed.