Reynolds v. City of Burlington

| Vt. | Jan 15, 1880

The opinion of the court was delivered by

Barrett, J.

I. We discover no error in law in the holding by the County Court that the notice of the place and cause of the accident was sufficient. The brick-yard was that which is described as such in the evidence with a front of two hundred feet. That being so, it does not appear that the manner of designating the place along the two hundred feet of dangerous rut at which the accident occurred, was not reasonably definite. The rut was of the same character throughout — dangerous all the way — with nothing collateral to it, distinguishing one place in it from another. The particular place was indicated by giving the depth and width, and characterizing it as a hole. The evidence justified that designation of the place, whether the whole length of the rut was of the same depth and width, or not. The city had every advantage in respect to the condition of the road that it could have had if the point had been fixed precisely by a stake or other monument. Wherever the accident might have occurred on said two hundred feet, there the same defect of the highway existed as at the place where the evidence shows that it did in fact occur. We do not relax on any view in former cases as to the requirements of the statute of the notice in question. We only say and hold in this case, that it does not appear that the notice does not point to and describe the place and the cause of the accident with reasonable particularity and certainty.

II. It seems to us that the verbose specification of the places and things injured, ought to entitle the plaintiff to be compensated for the consequences to his pleura, unless we adopt the principle of the maxim, “ inclusio unius exclusio alterius ”, and parody it, “ inclusio multorum exclusio reliquorum.” Dr. Crampton attributes the inflammation and adhesions of the pleura to the breaking of the ribs. That injury to the ribs is named in the notice. The resulting consequences to other occult and unknown organs may not have been within the knowledge and skill of the plaintiff, or of his counsel, at the time the injury was inflicted and the notice drawn. Whatever damaging consequences resulted from the breaking of the ribs may properly be proved, though the pathological process by which that damage comes to pass, be not specified in the notice.

III. The exception to the charge of the court is maintained. The idea of the kind and degree of care which the law requires on the part of the plaintiff in this case is propounded, developed, and illustrated in Briggs v. Taylor, 28 Vt. 180" court="Vt." date_filed="1855-12-15" href="https://app.midpage.ai/document/briggs-v-taylor-6575785?utm_source=webapp" opinion_id="6575785">28 Vt. 180; and how that idea may be expressed with adequate amplitude and precision is very well exemplified by Chief Justice Redfield in that case. Such kind and degree of care, as thus expressed and illustrated in its application to the subject of that case, is equally requisite on the part of the plaintiff in this case. This is fully asserted and shown in Folsom v. Underhill, 36 Vt. 580" court="Vt." date_filed="1864-01-15" href="https://app.midpage.ai/document/folsom-v-town-of-underhill-6577645?utm_source=webapp" opinion_id="6577645">36 Vt. 580. The exposition of this subject in Briggs v. Taylor has been regarded by the Supreme Court ever since as the true one, and to have done excellent service towards giving a definiteness and practical usefulness to the legal idea of the care to be exercised in such cases. In no case since that decision has the Supreme Court designed to modify the rule as there stated, illustrated, and established. As before said, it was asserted and applied in Folsom v. Underhill, and for failure of the County Court to come up to it in the charge, the judgment was reversed. We now hold the case last named to be authoritative in that respect.

We hold in this case that the charge failed to convey to the jury the true sense and force of that rule, and that, instead thereof, the subject was presented in manner and effect such as were held not to be answerable to the requirement of the law. The entire exposition by the learned judge of “ordinary care”, “ordinary prudence”, “ ordinary prudent men”, was calculated to leave an impression upon the jury of a very different kind and degree of prudence from that which the language and expositions of Judges Redfibld and Kellogg would make. The exposition in this case followed the compliance by the court with the requests of the defendant, and instructed the jury as to the sense in which the care and prudence spoken of in said requests were to be understood and regarded by them. Such exposition would naturally abate from the point and force which a naked compliance with those requests might otherwise have had. The care and prudence which the law regards as “ ordinary ” is such as prudent men are accustomed to exercise on like occasions, — not such “ as men generally”, not such as “ any man of ordinary care and attention”, not “ what a man of ordinary care would have done* riding as plaintiff was”, &c., not “ the usual order of ordinary care observed by men generally.” A man of ordinary care, of ordinary prudence, as expressed in common parlance, is not regarded by the law as being .to the common understanding the same as characterized by the expression, “ a prudent man”, “ prudent men.”

Though special request was not made for charge explaining the measure of care and giving the expression of it, still the subject of that measure was distinctly presented, and if the court undertook to give such explanation and expression, the requirement of the law in that behalf should have been complied with.

For the failure in the charge in this respect, judgment is reversed and cause remanded.