37 Vt. 501 (Vt. 1865), Hill v. Town of New Haven

Citation:37 Vt. 501
Opinion Judge:POLAND, Ch. J.
Party Name:CALVIN HILL, Administrator of GEORGE H. EAGER, v. TOWN OF NEW HAVEN.
Attorney:George F. Edmunds and E. R. Hard , for the defendant. J. W. Stewart and E. J. Phelps , for the plaintiff.
Court:Supreme Court of Vermont

Page 501

37 Vt. 501 (Vt. 1865)

CALVIN HILL, Administrator of GEORGE H. EAGER,



Supreme Court of Vermont.

January, 1865

Highways. Pleading. New Trial .

A party having suffered injury by the insufficiency of an highway, is not bound to establish in the outset as a distinct affirmative proposition, that he was guilty of no negligence on the occasion.

The question whether his negligence contributed to his injury is one of fact for the jury.

Where the declaration in an action for damages, under §§ 15, 16, 17, ch. 52, G. S., alleged the time of the decease of the party, which was within two years before the commencement of the action, without specifically alleging that it was within two years before the action was commenced, it was held , sufficient after verdict.

The power of the supreme court to grant new trials on the ground that the verdict was against the weight of evidence, should be confined to the court before which the case was tried. POLAND, Ch. J.

Page 502

ACTION ON THE CASE to recover damages for the death of the plaintiff's intestate alleged to have been caused by the insufficiency of a certain highway in the town of New Haven. Plea, the general issue, and trial by jury, June Term, 1864, PIERPOINT, J., presiding.

On trial the plaintiff asked leave to enter a non-suit on the second count in his declaration, to which the defendant objected, but the court granted the request, and a non-suit in that count was entered. The defendant then objected to the plaintiff's proceeding to trial on the remaining count, upon the ground that he could not legally do so. This objection also was overruled.

It appeared, and was not disputed, that the plaintiff's intestate, George H. Eager, while on his way from Bristol to Middlebury village, where he resided, driving a pair of horses attached to a wagon, on a highway in the town of New Haven, went with his team off from the highway into the New Haven river, and was drowned; that he left a wife and two children, one of the children having since deceased; that the plaintiff is the administrator on his estate, and that due and reasonable notice was given by the plaintiff to the defendant that the claim for damages embraced in this action would be made.

The legal duty of said town to keep said highway in repair was conceded, and the plaintiff's testimony tended to show that the highway at the place where the accident occurred was at that time out of repair, and insufficient in the following particulars: That it was at the place of the accident too narrow, and too near the margin of the river; that there were no barriers or landmark on the river side at that place, nor for a considerable distance on each side, to indicate where the road was, when covered with water, or to prevent travellers from driving off into the stream; that suitable means of discharge for the water from adjacent lands were not provided, whereby the road might be kept free from water so as to be discernable, and that loose boards that had been by this freshet forced from the fence at the place of the accident, were lying across the road, and were floating on the water in it, and calculated to frighten horses and cause them to shear off into the river.

There was evidence tending to show that one of Eager's mares that he was driving when the accident happened, was high spirited

Page 503

and difficult to manage in some places; that Eager had notice from one Nash that there was probably water in the road at the point where he was afterwards drowned, and if there was it would be dangerous to go that way; that Eager and Johnson, who was with him, stopped three times after driving into the water to examine the way; that the catastrophe happened at about sunset. Other facts are stated in the course of the opinion of the court.

The defendant requested the court to charge the jury, among other things, that, upon the uncontradicted testimony in the case respecting the circumstances attending the occurrence of the accident in question, the plaintiff was not entitled to recover.

That there was no testimony in the case tending to show that the plaintiff's intestate was, on the occasion in question, in the exercise of that degree of care and prudence which was requisite to entitle the plaintiff to recover, even if the highway was out of repair and insufficient.

That if the mare of Eager was fractious and difficult to manage in places of difficulty, as stated by Eager to J. R. Nash, then the attempt to pass through the water at the time in question, was an act of imprudence and negligence in itself, such as to preclude a recovery by the plaintiff.

But the court refused so to instruct the jury, and did (among other things not excepted to) charge that the question of the care and diligence of Eager, upon the occasion of the accident, was for the jury to determine. That if the negligence, carelessness or imprudence of Eager, or his companion, contributed in any degree to occasion the accident, the plaintiff could not recover, even though the road was ever so insufficient, and the accident occurred in consequence of the insufficiency.

That if he was acting imprudently, or doing what a man of ordinary care would not have done, and thus contributed in any degree to occasion the accident, the plaintiff could not recover.

That it was for the jury to say whether it was an act of prudence or negligence on Eager's part in going there and attempting to pass. That in determining this question, the jury should look at the case just as a man would who was placed in the same circumstances that Eager was.

Page 504

The jury were further told, that on the question of negligence on the part of Eager, the character of his team was to be taken into consideration, as well as the condition of the road, for it might be prudent to attempt to pass there with a perfectly gentle horse, when it would not be so with a horse which was otherwise, and if the horse was an improper one to be taken there, or was such as to render the attempt to pass unsafe, though otherwise safe, and Eager knew it, and the accident occurred on that account, the plaintiff could not recover. Verdict for the plaintiff.

After verdict and before judgment, the defendant moved in arrest of judgment for the insufficiency of the plaintiff's declaration. It was claimed that the declaration should have specifically alleged that the plaintiff's intestate died within two years before this suit was commenced, whereas it only alleged the time when the injury was received and when he died, which was within two years before the commencement of the action. This motion was overruled. To the decision of the court in allowing the plaintiff to enter a non-suit on the second count in his declaration and to proceed to trial on the other count, to the refusal to charge as requested, and the charge as given in regard to the defendant's said requests, and to the decision of the court overruling the defendant's motion in...

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