Hawkes v. Town of Chester

70 Vt. 271 | Vt. | 1898

Rowele, J.

While the plaintiff and his team were yet in the brook where the falling of the bridge had precipitated them, a witness asked him if he was killed, and he said “No, but I am terribly hurt.” Another witness testified that he said lie was “badly hurt.” The question to the first witness was unwarrantably broad, as it called for anything the plaintiff said when the witness first saw him there; but the answer did not go beyond permissible bounds, as it contained nothing but a relevant expression by the plaintiff as to his then present bodily condition in respect of injury. And the testimony of the other witness is to the same effect.

The defendant claims that as the statements indicated the extent of the plaintiff’s injury, they were inadmissible, and cites, among other cases, Traveller's Insurance Company v. Mosley, 8 Wall. 397, in support of the claim. But that case is the other way. It was assumpsit on an accident policy, and it was shown that the intestate said he had fallen down the back stairs and almost killed himself; that he had fallen down the back stairs and hurt himself very badly. It was held that those statements contained nothing in the nature of narration, but related to the then present bodily condition of the intestate in respect of pain and injury, and therefore were admissible to show that condition. This is certainly as strong a case as that, if not stronger, for the admission of the declarations. There is no doubt about the rule, it is only a question of its application.

Another witness went beyond the scope of a proper question and stated inadmissible matter as to what the plaintiff said; whereupon, exception being taken, the examining counsel asked to have the statement stricken out, which the court ordered, and told the jury not to consider it. This cured the matter. Morse v. Richmond, 42 Vt. 539.

The case has been treated throughout as one of latent defect in the bridge in question. The defendant complains of the charge, for that it makes the towrn an insurer, as it states without qualification, it is claimed, that it was its duty to maintain the bridge of sufficient strength to sustain the plaintiff’s carriage with a load not exceeding ten thousand pounds in weight, and that if it was in fault in this respect, and the plaintiff sustained damage by reason thereof, without contributory negligence on his part, he was entitled to recover. If this was all the court said on the subject, viewing the case as one of latent defect, it was error. But when we look at the whole charge, as we must —Fassett v. Roxbury, 55 Vt. 555; Melendy v. Bradford, 56 Vt. 155 — there is no fair ground for saying that the jury was misled by it, for the court went on to charge concerning the defendant’s duty to inspect the bridge, and the consequences of its neglect in that regard, and then said that if it exercised the requisite degree of care in that behalf, and failed to discover the defect in season to remedy it, it was not liable.

Jtidgment affirmed.