54 Vt. 41 | Vt. | 1882
The opinion of the court was delivered by
This cause was tried by jury at the term in June, 1875, and a verdict returned in the following words : “ We find no cause of action, solely on the ground that the plaintiff was mentally and physically disqualified to give legal notice to the town for the space of about two days from the time of the accident, from injuries received therefrom, but after that time was qualified to give said notice within thirty days, but neglected to do so.”
The verdict was set aside on the ground of its legal informality. The jury were directed if the verdict was for the defendant to answer the following questions, viz: “ Was the plaintiff, in consequence of the injuries sued for, bereft of his reason ?” “ Was
the highway in question at the time and place insufficient and out of repair ?” No answers to such questions were returned. To the ruling of the court setting aside the verdict the defendant ex
I. The question presented by the first bill of exceptions, is, whether the court erred in setting aside the verdict. The only facts found by the jury were, that the plaintiff was mentally disqualified to give legal notice to the town for the space of about two days; that subsequent to that time no disability existed, and he neglected to give such notice. The validity of the verdict depends upon the construction given to its language. The jury say that the plaintiff was mentally disqualified from giving the requisite notice. He was not so disqualified, or excused, unless he was “ bereft of reason ” ; we must therefore treat the verdict as an express finding upon that point, that he was bereft of reason ; and such finding entitled the plaintiff to further inquiries by the jury, as to the insufficiency of the highway, and the exercise of due care by him at the time of the accident; for, being bereft of reason, he was under no obligation to give notice. Gonyeau v. Milton, 48 Vt. 172. The latter inquiries were not made, and the proceedings we think resulted in a mistrial, and the verdict was properly set aside.
II. The testimony offered before the referee as to the width of the road at the time of the hearing in May, 1881, as compared with its width in 1868, and in connection with that, its width as compared with its condition in 1866, was properly excluded. It might, perhaps, have been proper for witnesses to testify, or refer, to the condition of the road at times other than that of the accident, by way of comparison, or in explanation of testimony ; but the proposal to show, independent of all other facts and testimony, the state of the road years after the accident, was properly overruled, as the fact was certainly immaterial; it had no tendency to show the condition of the road at the time of the accident which was the question under consideration.
Judgment affirmed.
