51 Vt. 131 | Vt. | 1878
The opinion of the court was delivered by
I. The plaintiff was injured on a so-called winter road. This winter road was. some thirty rods in length, nearly parallel with the regular highway, had been used thirty or forty years as a winter road, when the highway between its termini was impassable by reason of drifts, had been broken out for thirteen years by the highway surveyor, and broken out and repaired by him that winter. There was no evidence that the selectmen ever opened, or that they or the town ever recognized or adopted, this road as a public highway, or as a by-way, except from the facts
II. The plaintiff testified that he knew the place of the accident was a dangerous place, and had known it for three weeks before the accident. The defendant’s first and second requests on this point are, in substance, that if the plaintiff knew the place was a dangerous place, and voluntarily drove into it and was thereby injured, he was guilty of contributory negligence, and could not recover; and its third request,- that knowing of the defect existing at the place of the accident, he could not recover unless he used more than ordinary care and prudence in driving into it. We think the defendant was not entitled to have these requests complied with. The word dangerous is the opposite of the word safe. When a given place in a highway ceases to be safe it becomes dangerous. While it is reasonably safe the town is not liable though the traveler receives injury thereon. Hence, such instruction would- exonerate the town in all cases where the traveler knew of the defect causing the injury. A bridge, or a smooth well-wrought piece of the highway with a high embankment along its margin, without a railing, is unsafe, and so dangerous, and yet passed and passable by prudent men at the risk of the town if unforeseen accident causing injury should thereby happen thereon. When a given place in a highway becomes so dangerous that ordinarily prudent men knowing its condition would not attempt to pass over it, it might and would probably
III. The exception to the admission of the deposition was not well taken. It would have been better for the magistrate to have taken down the question objected to, and its answer, so that the court could judge of the force of the objection. On his refusal to do so, the counsel of the objecting party should have done so, and have presented it properly vouched for to the County Court. Then that court could have ruled intelligently upon the objection, and if it presented a matter of law and not of discretion, it could have been, revised in this court. As it is, the record discloses no error. If the question was leading, as is now claimed, inasmuch as the County Court might, in its discretion, have allowed it if the witness had been on the stand, and it would not have been révisable in this court, so in its discretion it might have allowed it by admitting the deposition without the commission of legal error.
IV. The court, pro forma, and against the defendant’s exception, allowed the plaintiff to show by a large number of witnesses and depositions, the condition of the road on the Monday preceding the Saturday of the accident, and a different defect from the one claimed to have occasioned the accident, such as recent drifts and new accumulations of snow several days before the alleged accident, and not the existence of a cradle or pitch-hole such as the plaintiff claimed caused the accident; and against like excep
It is not apparent what its snowy and drifted condition on the Monday before the Saturday of the injury had to do with the cradle-hole which the plaintiff claimed caused the injury, and of the existence of which and of its dangerous character the plaintiff testified he had known for three weeks. If other testimony existed and was introduced which connected this testimony with the existence of the cradle-hole, or with its dangerousness to the traveller, the plaintiff should have had it incorporated into the exceptions. As it stands in the exceptions it was