Cook v. Town of Barton

63 Vt. 566 | Vt. | 1891

The opinion of the court was delivered by

START, J.

This cause was heard on the defendant’s demurrer to the third count of the plaintiff’s declaration. This count sets forth that the plaintiff was injured by reason of the insufficiency and want of repair of a certain described highway which the defendant was bound to maintain and keep in repair.

It is insisted by counsel for the defendant that this allegation shows no cause of action against the defendant, and that towns have not been liable for injuries received upon highways since the passage of No. 62, Acts of 1880. It is conceded that towns are liable for injuries received by reason of the insufficiency and want of repair of bridges, culwerts and sluices ; and the only question to be considered is, whether the allegation that the injury was received upon a highway by reason of its insufficiency and want of repair, shows a cause of action against the defendant. In other words, is it necessary to show by the declaration that the injury was received by reason of the insufficiency and want of repair of a bridge, culvert, or sluice % If bridges, culverts or sluices are highways, then the declaration shows a legal cause of action, unless it is necessary to show by the declaration that the injury was received by reason of the insufficiency and want of repair of a particular portion of a highway, commonly called a bridge, culvert, or sluice. Section 24 of R. L. provides that, “The word‘highway’ or ‘road’ shall include bridges thereon.” Since the passage of this statute, a bridge may properly be called a highway, and the allegation in a declaration, that an injury was received by reason of the insufficiency or want of repair of a highway, sufficiently shows a cause of action for which a recovery may be had, provided the proof shows that the injury was received by reason of the insufficiency or want of repair of a bridge. The injury shown by the declaration is one for which the defendant town may be liable. Its liability must be determined by the proofs. Barber v. Essex, 27 Vt. 62; Bardwell v. Jamaica, 15 Vt. 438. In the case of Bardwell v. Jamaica, supra, the declaration alleged an injury to have been occasioned by the insufficiency of a bridge. The proof was of a defect in the abutment, and the court held there was no variance.

The statute giving a remedy for injuries received upon highways does not require the place of the accident to be described in the declaration with certainty. The notice required must be such as to inform the officers of the town where, and in what respect, the highway is insufficient, but it has never been held that the declaration must point out with certainty the place of the accident, or in what respect the highway was insufficient; and there seems to be no good reason for requiring declarations in this class of actions to be drawn with any greater certainty than in common law actions.

Judgment affirmed, and cause remanded.