Castle v. Town of Guilford

• Decision Date: 12 May 1913
• Citation: 86 A. 804,86 Vt. 540
• Parties: CASTLE v. TOWN OF GUILFORD.
• Court: Vermont Supreme Court

86 A. 804

86 Vt. 540

CASTLE

v. TOWN OF GUILFORD.

Supreme Court of Vermont. Brattleboro.

May 12, 1913.

Exceptions from Windham County Court; Fred M. Butler, Judge.

Action by Walter H. Castle against the Town of Guilford. Verdict and judgment for plaintiff, and defendant excepts. Judgment affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON. HASELTON, and POWERS, JJ.

Herbert G. Barber and Frank E. Barber, both of Brattleboro, for plaintiff.

John E. Gale, of Guilford, and E. W. Gibson, of Brattleboro, for defendant.

HASELTON, J. The action is case and is brought under P. S. 4029 for damages to the property of the plaintiff claimed to have been suffered by reason of the insufficiency and want of repair of a bridge and its approaches in the defendant town. Trial by jury was had, a verdict for the plaintiff was returned, and judgment was rendered thereon. The defendant excepted.

A written notice was given to the selectmen of the town within the time required by statute and was received in evidence. The notice omitting the address and signature, about which no question is made, reads as follows: "You are hereby notified that on the 27th day of December, A. D. 1911, at said Guilford, one Carl Castle of said Guilford was driving a pair of horses belonging to me on the main highway leading from Guilford Center, so called, to Hinesburgh, so called, in said Guilford; that as said team was driven upon the bridge and the approaches and abutments thereof, which said bridge is between the Guilford Springs farm, so called, and school No. 14, in said Guilford, and was approaching said bridge from the southeast, for want of proper and sufficient muniment or guard on said bridge and the abutment and approaches thereof, the horses and team slipped, fell, and went over said abutment, approaches, and the embankment thereof, falling a distance of some six or eight feet, thereby breaking the forward leg of one of said horses, which resulted in its death; that the wagon was overturned and damaged and a quantity of milk lost; that said bridge, abutment and approaches thereof were wholly insufficient and out of repair in that there was no railing or sufficient guard extending along on either side of the approaches and abutments thereof on the easterly end thereon, to protect my team or the public when traveling upon said bridge as aforesaid, from slipping, sliding and going off the approaches, abutments and embankments thereof; that said team fell over and down the abutment and embankment and the approach thereof about thirty feet from the easterly end thereof and on the northerly side thereof. And you are hereby notified that I shall claim satisfaction of the town of Guilford for the injuries and damages occasioned to me as aforesaid." When the notice was offered in evidence, it was objected to on 16 grounds, and it was admitted subject to the exception of the defendant to the overruling of its objection, and all of the evidence in the case was received subject to objection and exception on the ground that the evidence was immaterial because of the insufficiency of the notice; and at the close of the evidence the defendant moved that a verdict be directed in its favor on the grounds stated in the objection made to the admission of the notice. This motion was overruled, and the defendant excepted.

The notice is claimed to be insufficient for failure to allege that the bridge or its approaches complained of were a part of a highway, were a part of a public highway, were a part of a highway in the defendant town, or that the town was legally bound to maintain them. The notice states with sufficient clearness that the bridge and its approaches were on a highway; and all highways are public highways. Bacon v. Boston & Maine Railroad, 83 Vt 421, 430, 76 Atl. 128; Skinner v. Weathersfield, 78 Vt. 410, 63 Atl. 142; French v. Barre, 58 Vt. 567, 5 Atl. 568. The notice, too, states clearly enough that they were on a highway in the town of Guilford for the place in question is alleged to be "at" Guilford on a highway leading from one place to another "in Guilford."

The claim that the notice should have stated in terms that the bridge is one "that the defendant town was bound to maintain or keep in repair" is unsound. Some color is given to this claim by the language used in Farnsworth v. Mt. Holly, 63 Vt 293, 22 Atl. 459, and in White v. Stowe, 54 Vt. 510. But the statute prescribes what the notice shall contain and requires no instruction to be given to the town as to its legal duty. Skinner v. Weathersfield, 78 Vt. 410, 63 Atl. 142; Graves v. Waitsfield, 81 Vt. 84, 69 Atl. 137; P. S. 4031, 4032.

Further, it is claimed that the notice is insufficient because it does not state "that the bridge in question or its approaches were on the highway described in the notice"; that is, that for anything appearing in the notice the bridge at which the trouble is in one clause said to have occurred may have been on a different highway from that on which, in a previous clause, the notice says that the team was being driven. But the distinction attempted to be made is too refined to require discussion. The whole narrative is contained in one sentence and its meaning in this respect is clear.

It is claimed that the notice is not sufficiently explicit as to the place where the accident occurred. The place is fairly stated to have been between the Guilford Springs farm, so called, and school No. 14, about 30 feet from the easterly end of the bridge described. The plaintiff's evidence tended to show that there was in Guilford a farm called the Guilford Springs farm and a schoolhouse No. 14, and to show that the bridge in question, and no other, was located on the highway described between the farm named and schoolhouse No. 14. The notice of the place of the accident was sufficiently certain, since "with it in hand the selectmen could have had no trouble in finding the place." Cleveland v. Town of Washington, 79 Vt. 498, 65 Atl. 584; Tinkham v. Stockbridge, 64 Vt. 480, 487, 24 Atl. 761; Harris v. Townshend, 56 Vt. 716; Melendy v. Bradford, 56 Vt. 148; Fassett v. Roxbury, 55 Vt. 552; Bliss v. Whitingham, 54 Vt. 172; Rogers v. Swanton, 54 Vt. 585; Ranney v. Sheffield, 49 Vt. 191. The defendant refers to the apparent inaccuracy of the reference in the notice to "school No. 14," instead of "schoolhouse No. 14." But this is not a matter for serious discussion.

The defendant claims that the notice is not sufficient in respect to the time alleged, that it does not state upon what day the horses were driven upon the bridge or its approaches, and that it does not expressly state the time when the injury occurred. But the notice is a narrative of consecutive events alleged to have happened on the 27th day of December, 1911. It was not necessary to repeat the date in referring to each incident of the narrative.

It is claimed that the notice is insufficient because it does not state that the driver, Carl Castle, was an agent or employé of the plaintiff, but such statement was unnecessary, and such fact was not necessary to recovery. The notice in this respect is like the notice in Tinkham v. Stockbridge, 64 Vt. 480, 24 Atl. 761, which was held to be sufficient. Though a team is lent or hired to the one driving it, if the property is injured in consequence of the insufficiency or want of repair of a bridge, the case in respect to the property injured stands the same under our statute as if the owner or his agent had been the driver. The notice need state only what the statute requires.

It is not a declaration of the cause of action, and need not be referred to in the declaration, and is not evidence in favor of the plaintiff of the matters contained therein. It is simply necessary in order that the plaintiff may assert a right of action. Matthie v. Barton, 40 Vt. 286; Herrick v. Holland, 83 Vt. 502, 77 Atl. 6.

It is claimed that the notice is insufficient, in that it does not allege that the plaintiff or his servant or agent was a traveler upon the highway. The failure to allege that the one in charge of the team was a traveler is all that remains to be considered under this claim. The notice shows that Carl was driving the team along the highway, and that is enough in this respect. In this regard the notice is like that in Tinkham v. Stockbridge, 64 Vt. 480, 24 Atl. 761, which was held sufficient, and which was apparently used as an approved form in the drawing of the notice here. It is claimed, under certain objections to the notice, that it is insufficient, and does not state a cause of action because it alleges as the cause of accident the failure to maintain guards and muniments not required by statute.

It is true that the failure of a town to maintain a guard or railing at a dangerous place on a highway...