Charles D. Bancroft v. Town of East Montpelier

• Decision Date: 13 February 1920
• Parties: CHARLES D. BANCROFT v. TOWN OF EAST MONTPELIER
• Court: Vermont Supreme Court

109 A. 39

94 Vt. 163

CHARLES D. BANCROFT v. TOWN OF EAST MONTPELIER

Supreme Court of Vermont

February 13, 1920

November Term, 1919.

ACTION OF TORT for damages received through the alleged insufficiency of a culvert. Plea, the general issue. Trial by jury at the September Term, 1918, Washington County, Stanton J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

We find no error in the case, and the judgment is affirmed.

Fred L. Laird and S. Hollister Jackson for the defendant.

Theriault & Hunt for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

MILES

This is an action to recover for damages to the plaintiff's automobile through the alleged insufficiency of a culvert in defendant town which by law the town was bound to maintain and keep in suitable repair for the safe travel of those having occasion to pass over it. The case was tried by jury, and a verdict was rendered for the plaintiff and the case comes here on the defendant's exceptions to the overruling of its motion for a directed verdict and for the failure of the court to comply with certain requests to charge.

The grounds upon which the motions are based are that the evidence in the case fails to show that the defendant was negligent and that the plaintiff was free from contributory negligence. In the briefs of both parties and in their oral arguments, the weight of the evidence is pretty fully and freely discussed; but we have nothing to do with its weight. The simple question raised by the motion is whether there was any substantial evidence in the case supporting the plaintiff's allegations that the defendant was negligent and the plaintiff was free from negligence which proximately contributed to his injury. Cummings v Cambridge, 93 Vt. 349, 107 A. 114.

The transcript is made the bill of exceptions and is to control. An examination of that portion of the transcript, to which our attention is called, reveals evidence tending to prove the following facts: That the culvert is situated in a part of the highway where the road descends to it on both sides, for a considerable distance on each side of the culvert, and in or near a curve in the highway, the traveled portion of which, at the culvert, was eleven feet wide and extended to each end of the culvert, and the road was practically level from one end to the other of the culvert; that several feet of soil covered the culvert; that the covering, at the end of the culvert, where the car went off, was soft and gave way as the car went over the end of the culvert; that the culvert, measured on the inside of the curve, where the accident happened, was five feet, eight inches high, five feet, five inches wide, and from the surface of the road to the bottom of the culvert, was nine feet and six inches; that the angle of the bank formed by the earth covering the culvert was one and one-half feet slope to one foot drop, and that the bank was covered by bushes and vines extending above the plane of the road two or three feet, obscuring the nature and character of the culvert and its dangerous surroundings; that there was no guard rail or other warning of the danger of accidentally going over the end of the culvert, nor anything to notify the traveler that a slight variation from the center of the road was liable to result in an accident similar to the one under consideration; that this highway was extensively used by the traveling public in transporting goods and other commodities from Plainfield to North Montpelier and from North Montpelier to Plainfield.

Upon this evidence which is to be taken in the light most favorable to the plaintiff, we are unable to say that as a matter of law the defendant was not guilty of negligence which proximately produced the accident. The sufficiency of the culvert without a railing, which is the negligence complained of, in the light of the foregoing facts which the evidence tended to prove, was, at least, a question of fact for the jury. Cassedy v. Stockbridge, 21 Vt. 391; Sessions v. Newport, 23 Vt. 9; Drew v. Sutton, 55 Vt. 586, 45 A. R. 644; Maynard v. Westfield, 87 Vt. 532, 90 A. 504.

The testimony upon which the defendant relies in support of the contention that the plaintiff was guilty of contributory negligence was mainly that of the...