Sykes v. Town of Pawlet, 43 Vt. 446

Sykes v. Town of Pawlet

43 Vt. 446 | Vt. | 1871

The opinion of the court was delivered by

Barrett, J.

The case being before us upon exceptions to a pro forma judgment of the county court, on a report of a referee, it is for this court to determine what judgment ought to be rendered. The court can regard only 'the facts found by the referee, as constituting the ground for such judgment.

In order to charge the town with liability for the damage sustained by the plaintiff, it is necessary that it should appear that such damage was caused by the insufficiency and want of repair of the highway, as provided by our statute, as it has been construed and applied in a long series of decided cases. This case seems to present several formidable reasons why the plaintiff is not entitled to recover.

The traveled track of the highway is not complained of. The plaintiff did not meet with the accident in attempting to use it as a thoroughfare for travel. On the other hand he went on the road as far as he desired to, and then turned aside and drove under a private shed as matter of choice and convenience, to let his team stand while he was going about the village on foot, in the transac*449tion of business. When he got ready to use his team again, he undertook to get it out of the shed with a view to getting it on the road again, but in doing this his horse backed out of the shed directly into the gulf, some twenty feet and more from the traveled track. This would seem to render the case of Rice v. Montpelier very much in point against his right to recover.

Again, the duty of the town in reference to the margins of highways has never been extended beyond the requirement that they should be kept in a reasonably safe condition as against such accidents as are likely to, and actually do, occur in using the highway for the purpose of travel. In this case the backing into the gulf was not the result of an accident that occurred in using the highway for travel, but it resulted from using a shed by the side of the highway, in an interval of cessation from travel, and attempting to get back into the road, after a voluntary departure from it.

Again, in order to entitle the plaintiff to recover, it should appear that the defect complained of was within the limits of- the highway as located and established. This does not appear, but on the contrary, so far as the facts in this regard are shown to the court, the place of the accident was outside of the limits of the established highway. It is not to the purpose to say, that that gulf extended from the shed so near to the traveled track, and even within the limits of the highway, as to be very dangerous to persons passing on the traveled track of the highway. If the plaintiff had met with the accident for that cause, and in that manner, he would have had a case very different from his present one in this respect, but which we do not now undertake to decide, nor do we undertake to intimate what consideration we should give to it. The dangerousness of the gulf near the traveled track did not trouble him in this instance. It was the gulf near the front of the shed, and many feet away from the traveled track.

While we should recommend to the parties entitled, to control the matter to fill up that horrible gulf, and especially to the keeper of the Franklin Hotel to make a safer entrance and exit in front of his shed for the accommodation of his neighbors who may want *450a good hitching-place under cover, when they come to the village on business ; still, we are clear that the town cannot be made responsible for default in this respect, in this case.

Judgment is reversed, and judgment for the defendant.