22 Vt. 213 (Vt. 1850), Robinson v. Cone

Citation:22 Vt. 213
Opinion Judge:REDFIELD, J.
Party Name:ROLLIN ROBINSON v. ENOCH CONE.
Attorney:C. B. Harrington for defendant. D. Roberts, Jr., for plaintiff.
Court:Supreme Court of Vermont

Page 213

22 Vt. 213 (Vt. 1850)

ROLLIN ROBINSON

v.

ENOCH CONE.

Supreme Court of Vermont.

January, 1850

Page 214

TRESPASS for an assault and battery. Plea, the general issue, and trial by jury, September Term, 1847,--HALL, J., presiding.

On trial the plaintiff gave evidence tending to prove, that at the time of the injury complained of he was about three years and nine months of age; that his father resided at the summit of a hill, about one fourth of a mile northerly from the centre of the village in Pawlet; that during the winter of 1844-5 he attended a school, which was kept near the centre of the village, southerly from the foot of the hill, and that in going to and returning from school he necessarily passed along the public highway leading down the hill; that on the tenth day of February, 1845, a short time before one o'clock in the afternoon, he was sliding down the hill, in the travelled path of the highway, very near to the west side, on a small sled, lying on his breast upon the sled, with his feet and legs projecting behind the sled, and his left leg hanging over the left side of the sled, and with his head inclined towards the western bank; that while he was thus situated, and when near the lower end of the hill, the defendant came upon the brow of the hill from the north, with a load of bark, drawn by two horses on a traverse sleigh, driving with great force down the hill upon a smart trot, on the west side of the road; that the plaintiff was then on the west side of the road, two or three feet from the western bank,-- which rose abruptly from the surface of the travelled part of the road,-- attempting to push himself and his sled, on which he was lying, toward the outward and westerly side of the travelled path; that the travelled path was there twenty two feet and

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some inches wide; and that when the plaintiff was within two or three feet of the bank, still lying on his breast, with his head towards the westerly side of the road, his left leg, which hung over the sled, was caught by the right runner of the rear traverse of the defendant's sleigh, and so broken and lacerated as to require amputation, and that his shoulder was dislocated and other injuries received.

The plaintiff also gave evidence tending to prove, that the length of the road upon the hill was 410 feet, and its ascent, in the same distance, about 433 inches; that there was sufficient room for the defendant to have passed the plaintiff upon the easterly side, with ordinary care; and that the road, where the plaintiff was injured, was travelled over the whole surface from the western bank to the eastern side and was smooth from use.

The plaintiff also proved, that the defendant said, after the injury, that as he came over the brow of the hill he saw something in the road, which he supposed was a dog; that he was coming down rather on the west side of the road, and when he saw it was a boy, he thought he would have wit enough to get out of the way, until he came near; that his horses were well broke, and he held them hard, so that they did not raise their feet from the ground, but they could not hold the load, so as to stop it suddenly; that as soon as he saw, that the horses could not hold the load, and that he must pass over the boy, if he went directly forward, he turned to the east, and the horses and the forward traverse passed the boy without touching him, but the rear traverse did not track after the forward one and ran over him; and that the hill was always swarming with children, and he never drove into the village, without finding the hill alive with them. The plaintiff also gave evidence tending to show, that the place, where the defendant said he was, when he first saw the plaintiff, was distant from the plaintiff about ten rods, and that the surface of the road was depressed in the middle not more than four inches.

The defendant gave evidence tending to prove, that the plaintiff, with other boys, was, at the time of the injury, sliding on the hill for amusement, and that the other boys were at the foot of the hill, drawing back their sleds; that the road upon the hill was narrow and very slippery and icy from the travel on it and its use by the

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boys for sliding; that he resided three or four miles distant, and had no knowledge of the size and age of the boy, until near him; that the boy was near the centre of the travelled path, which was at that place from eight to twelve inches lowest in the middle; that when he was three or four rods from the boy, and at the earliest moment he had reason to apprehend there was danger, that the boy would not get out of the road, he held his horses hard, but seeing, from the icy and slippery state of the hill, that the horses could not seasonably check the impulse of the load, he turned them suddenly to the east side of the road, and approached it as near as it was possible to do, without going over the bank, and by that means the horses and forward traverse passed the boy safely, but that, from the inclination of the road at that place towards the centre, the after traverse slipped towards the centre of the road, and thereby struck the plaintiff's leg; that the surface of the hill was undulating; and that he was on a steep point of the hill, when he discovered the boy, trotting slowly, and driving at the usual and ordinary rate of speed, at which prudent men drive with such a load at such a place.

The defendant requested the court to charge the jury,--1. That if the injury arose from any neglect, or want of care, on the part of the plaintiff, he cannot recover. 2. That if the plaintiff was in the exercise of ordinary care, and the injury was the result of unavoidable accident, the plaintiff cannot recover. 3. That if the plaintiff was of so tender an age, as not to be capable of observing and avoiding travellers, it was gross negligence on the part of his parents to permit him to be in the street, and no recovery can be had, unless the defendant was grossly negligent, or the injury was voluntary on the part of the defendant. 4. That the law of the road requires, that those on foot should yield the road to teams; and that the supposition is, that they will do so. 5. That persons, who use the highway for games and amusements, not connected with travelling, do so at their peril, and cannot call on a traveller for damages for an injury, unless the traveller were grossly negligent. 6. That as the plaintiff was bound to yield the road to the defendant's team, and did not, he must suffer the consequences, even if he were not in fault, (as if blind, or deaf,) unless the injury resulted from the gross neglect of the defendant. 7. That the care and diligence, which the defendant was bound to exercise, was the ordinary care

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and diligence used by persons of common prudence in like circumstances. 8. That the defendant, on discovering that the plaintiff was not about to get out of the road, was not bound to adopt the best possible means of avoiding the injury, but is excusable, if he acted with ordinary care and prudence under the circumstances. 9. That gross negligence is more than mere inattention, and is such a degree of rashness, or wantonness, as evinces a willingness, that the act complained of should be done.

But the court charged the jury, that the law of the road, applicable to injuries sustained by travellers coming in contact with each other, is, that both should be held to the exercise of common care and prudence in the use of the road; that if both are equally negligent, no recovery can be had for such injury; --that the defendant, in this case, would not be liable, if the injury to the plaintiff happened, while the defendant was in the exercise of ordinary care and prudence; and farther, that if the defendant were not in the exercise of ordinary care and prudence, he would not be liable, provided the injury would not have happened, but for the want of ordinary care and prudence on the part of the plaintiff; --that ordinary care and prudence was such, as would commonly be used by persons in the situation and under the circumstances, in which the parties were, in this case, and that whether they were in the exercise of such care and prudence was a question for the jury, to be ascertained and determined by them from the evidence; --that they should first inquire, whether the plaintiff was in the exercise of ordinary care and prudence, at the time of the injury, and if they found he was not, and that the injury would not have happened, but for the want of such care and prudence on his part, it would be their duty to render their verdict for the defendant, whether he was in the use of such care and prudence, or not; --that in determining the amount of care and prudence to be required of the plaintiff, they need not measure it by the rule, that would be applicable to an adult, but might consider, that he was a child, about four years of age, from whom a less degree of care and prudence might be expected; that if they believed, the plaintiff acted on that occasion, as a child of his age and capacity would be expected to act, they might consider his want of the care and prudence of an adult as no objection to his recovery; --that it was claimed on the part of the defendant,

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that the court should charge them, that if the boy was of so tender an age, as not to be capable of discovering and avoiding travellers, it was gross negligence in the parents to permit him to be in the street, and that he could not recover, unless the defendant was guilty of gross negligence, or...

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