Pratt v. Town of Sherburne

| Vt. | Feb 15, 1881

The opinion of the court was delivered by

Royce, J.

The place where the accident happened, or occurred, to the plaintiff, is described in the notice given to the selectmen of the defendant town, as being a “ short distance south of the burying ground gate, north from Warner Bates’s dwelling-house in said town ” ; that the road at that place was narrow, and the bank of the road on the west side was about three feet high, and that, about three feet from the travel of the road at the foot of the bank lay a large log ; and that there was no railing at the place. Before the commencement of the trial, at the defendant’s request, by order of court, the jury, that had been empanelled, were taken to the place of the accident, and a view was had by them of whatever either party desired relative to the accident.

No question was made as to said notice at the time it was offered and received in evidence ; and there was no question or dispute during the trial as to the place of the accident. No claim appears to have been made that it was insufficient until the tesmony had all been put in, and the counsel for plaintiff had made the opening argument. Defendant’s counsel then claimed that it did not sufficiently describe the place, where the accident hap-pened ; and the court so ruled, and directed a verdict for the de-. fendant. The acts of 1870 and 1874, require that the notice to be given to the selectmen shall state the time when, and the place where, the injury was received. A construction was given to the act of 1870, in its requirement of the description of the place where the injury was received, in Law v. Fairfield, 46 Vt. 425" court="Vt." date_filed="1874-01-15" href="https://app.midpage.ai/document/law-v-town-of-fairfield-6579874?utm_source=webapp" opinion_id="6579874">46 Vt. 425; and it was there held that the purpose of the statute was, that such a notice should be given “ as would fairly, under all the circumstances of the particular case, reasonably, inform the town of the locality, in which the insufficient highway causing the injury, existed.”

In Reed v. Calais, 48 Vt. 7" court="Vt." date_filed="1875-08-15" href="https://app.midpage.ai/document/reed-v-town-of-calais-6580219?utm_source=webapp" opinion_id="6580219">48 Vt. 7, it is said “ that the notice should point as directly and plainly to the place as reasonably practicable, having regard to its character and surroundings.” It is obvious that no more definite rule can be prescribed. The sufficiency of the notice in that particular must depend largely upon the circumstances of the case.

The description of the place in this case was prima facie sufficient ; and in the absence of proof that it could reasonably have been made more certain and definite, it was error to rule that it was insufficient. The fact there were other logs on the west side of the highway north of the place of the accident, without evidence of their location, does not appear to have been misleading, or that the notice would have been any more certain and definite if they had been referred to. The only fact that would render the sufficiency of the notice doubtful, is the want of evidence of the direction and distances from the objects named in it to the place of the accident. But when the jury had viewed the premises, and no question had been made as to the place of the accident, the plaintiff might well understand that he was relieved from the necessity of proving those facts.

It was also claimed that the notice was insufficient in its description of the injuries received. The court did not make any ruling upon that question, but inasmuch as the case will have to be remanded for a new trial, and it has been fully argued, it is for the interest of the parties that it should be decided now. The act of 1874 requires that where damages are claimed the notice shall contain a description of the injury received or damage sustained ; and if bodily injuries be claimed, the part of the body injured shall be given, together with the extent and effect of the injury upon the health of the person so injured. It will be seen that a distinction is made between the description required to be given of injury to the property and injury to the person. There is not the same particularity required in the description of injuries to property that there is in injuries to the person. The description given of the injury to the plaintiff’s property is, that his wagon was broken, and his horse was injured. The notice in this particular was not as specific and definite as they were in Nourse v. Victory, 51 Vt. 275" court="Vt." date_filed="1878-10-15" href="https://app.midpage.ai/document/nourse-v-town-of-victory-6580978?utm_source=webapp" opinion_id="6580978">51 Vt. 275, and Boyd v. Readsboro, and Perry v. Putney, in the 52 of Vt. 533, which were held good. We think this was sufficient. The object of the requirement was, to give the town such notice of the injury that they in the exercise of reasonable diligence, could ascertain its character and extent; and this notice was ample for that purpose. Where damages are claimed on account of bodily injuries, as we have seen, more particularity in description is required. The question as to what constitutes a sufficient description of such injuries was before this court in the three cases last referred to. In Perry v. Putney the notice stated, among other things, that the plaintiff was “ badly injured about the back and kidneys,” and that his “ whole body was shaken, bruised and injured,” “ and his health greatly impaired.” But he was not allowed to recover for any of the injuries described in that portion of the notice.

Upon the authority of those cases, it is clear that no recover^ can be had on account of the personal injuries described in the notice given to the defendant town. The judgment is reversed, and the cause remanded.