Brown v. Town of Mt. Holly

• Decision Date: 31 January 1897
• Citation: 69 Vt. 364,38 A. 69
• Parties: BROWN v. TOWN OF MT. HOLLY.
• Court: Vermont Supreme Court

38 A. 69

69 Vt. 364

BROWN

v. TOWN OF MT. HOLLY.

Supreme Court of Vermont. Rutland.

Jan. Term, 1897.

Exceptions from Rutland county court; Rowell, Judge.

Action by James Brown against the town of Mt. Holly for damages for injury through a defect in a highway. The plea was the general issue. There were verdict and judgment for plaintiff, and defendant excepts. Reversed.

The accident occurred on Tuesday. The defendant requested the court to charge "that if the culvert was suitably built, and remained apparently safe and secure, and there was no apparent change in its condition before the accident, and the accident was occasioned by the parting of the stones covering the culvert, then the defect would be latent, and the town not liable, and that this would be true although the hole was there a few hours before the accident, or even the Sunday night before, unless the jury should find that by due diligence the town ought to have known of the defect; that the town is chargeable only with the care and prudence of an ordinarily prudent man." The court refused to charge as requested, but charged that the town's liability was not to be measured by ordinary care and prudence; that the statute imposed upon it the duty of keeping the culvert in good and sufficient repair, and if it had neglected that duty, and the culvert was insufficient and out of repair, it was liable, if the plaintiff's case was otherwise made out, whether it knew of the defect or not, and whether it was, or not, negligent in not knowing it. To this refusal and charge the defendant excepted.

W. W. Stickney, J. G. Sargent, and H. W. Parker, for plaintiff.

W. H. Lord and G. E. Lawrence, for defendant.

START, J. The plaintiff's evidence tended to show that, while riding over a culvert which the defendant was bound to maintain and keep in repair, his horse stepped into a hole that had been there about 48 hours, caused by the spreading of the stone slabs covering the culvert, and the dirt covering the same working through. The defendant's evidence tended to show that there was no hole in the culvert until the plaintiff's horse broke through it on the occasion of the accident; that the culvert was properly and securely built, with sides covered with large flagstones, which at the time of the accident were covered with gravel and dirt to the depth of about 18 inches; that said culvert was, to all appearances, in perfect condition; that the defect could only have been discovered by crowding into the culvert; that the defendant's road commissioner had from time to time inspected the road where the culvert was, and discovered no fault in the same. This evidence tends to show that the defect causing the injury complained of was so far latent, sudden, and unforeseen that its occurrence could not reasonably have been anticipated...