Law v. Town of Fairfield

46 Vt. 425 | Vt. | 1874

The opinion of the court was delivered by

Ross, J.

I. The only pretended evidence that Carey was driving the team at the time of the accident, was that of some witness for the defendant, who testified that within a few days of the trial, Carey had admitted he-was driving. Carey was not a party to the suit. Hence, this admission, if made by him, could not be received or considered as evidence in chief, to establish the fact that he was driving. He had been improved as a witness for the plaintiff, but whether he had denied, while testifying, that he was driving at the time the accident occurred, does not appear. If,' as is probable, he had made such a denial, this evidence was admissible to discredit him as a witness, and could not have been received nor considered for any other legitimate purpose. There was, therefore, no legitimate evidence that Carey was driving the team when the accident occurred, and hence, no foundation in the evidence for the second and fourth requests made by the defendant. Carey had invited the plaintiff to accompany him to the fair; and, on her acceptance of the invitation, he had conveyed her to the fair. If the accident had happened while he was driving the team, and when she was accompanying him, and was under his care and safe conduct, these requests would have been pertinent. But as, at the time of the occurrence of the accident, she was driving the team, and he was in her care, and was accompanying her, and not she him, there was no evidence in the case to which these requests could be legitimately applied, and for that reason the court properly refused to charge in accordance with them.

II. The act of 1870 so far changed the law in regard to notice, as to require the notice to be “ in writing,” “ stating the time when, and the place where, such injury was received.” The question raised is, whether a notice informing the town that the accident happened somewhere on a highway four and a half miles in length, and conveying no more definite information of the place, is a sufficient stating of the place where the injury was received, to answer the requirements of the statute. The language of the statute is quite indefinite. The word place is a very indefinite term. It is applied to any locality, limited by boundaries, however large or however small. It may be used to designate a country, state, county, town, or a very small portion of a town. The extent of the locality designated by it, must, generally, be determined by the connection in which it is used. In this statute, it is used in connection with the highways in a town, and was intended to designate some locality within the boundaries of such highways. The liability of a town for damages sustained by a traveller, is limited to such highways as the town is obliged to maintain, which, usually, is confined to the highways within the town. It is evident, therefore, that place, as used in the statute, is intended to be confined to a locality less extensive than the entire highways in the town. But, how narrow a locality on the highway was intended to be designated by the word place, it is difficult to determine. The natural objects by which the locality of the injury can be definitely described, will vary very much in different cases. The knowledge which the injured party has, or might obtain, of such natural objects, will not always be the same. If the time of the accident wore the night, and the occasion the first passage of the party receiving the injury, over the highway, he might have, or be able to obtain, but limited means of describing the exact locality which occasioned the injury. It would be a harsh, not to say an unjust, application of the statute, to limit its language to so narrow a locality as to deprive an injured party of the right of recovery where he has given the town the best description of the precise place occasioning the injury which it was in his power to give. Such, evidently, was not the intention of the legislature. The object to be effected by the passage of the statute was in the interest of the town. Before the passage of this statute, the person sustaining an injury through the insufficiency of a highway, was simply required to notify one of the selectmen of the town, within thirty days, of the injury, that he had sustained damages, and should require satisfaction of the town. This notice was first required, by statute, in 1855. The law, before the act of 1870, left the town to ascertain, as best it could, the place whore the insufficiency existed. The act of 1870 requires the notice to be in writing, and that it state the time and place where the injury was received. All the provisions of the act of 1870, manifest a purpose on the part of the legislature, to require a more certain and specific notice to be given, and such a notice as would fairly — and, under all the circumstances of the particular case, reasonably — inform the town of the locality in which the insufficient highway causing the injury, existed, so that the officers of the town, immediately after the injury, and before the surface of the highway has materially changed, might examine the place causing the injury, and judge of the sufficiency or insufficiency of the highway at that point; and thus be prepared to resist or yield to the claim of the injured party. Doubtless, the statute was intended to furnish to the town the same facilities for ascertaining the condition of the place causing the injury, which the injured party has, or could reasonably have; and so, enable it to secure testimony of its condition, before it shall have passed from existence. It is manifest that no specific rule can be laid down which will govern all cases ; that the sufficiency of the notice in each case must be determined, to some extent, by the facts of that case. We do not think, under the circumstances of this case as developed in the exceptions, that the court, as matter of law, could hold that a highway four and a half miles in length, was a reasonable statement of the place where the injury was received. It threw upon the town, if it would find the exact locality of the insufficiency which caused the injury, the burden of examining the whole length of the highway named in the notice. Nor did the. notice furnish the town any data by which it might certainly know that the particular locality it might fix upon, was the place at which the plaintiff received the injury. No facts are stated in the exceptions which rendered it unreasonable to require from the plaintiff a more definite and limited description of the place causing the injury. In the absence of all such facts, we think the court erred in holding that the notice, as the defendant’s evidence tended to prove it, was sufficient. Judgment reversed, and cause remanded.