Cleveland v. Town of Washington

• Decision Date: 28 January 1907
• Citation: 65 A. 584,79 Vt. 498
• Court: Vermont Supreme Court
• Parties: CLEVELAND v. TOWN OF WASHINGTON.

65 A. 584

79 Vt. 498

CLEVELAND

v. TOWN OF WASHINGTON.

Supreme Court of Vermont. Orange.

Jan. 28, 1907.

Exceptions from Orange County Court; Powers, Judge.

Action by George W. Cleveland against the town of Washington. From a judgment for plaintiff, defendant brings exceptions. Judgment affirmed.

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

John W. Gordon and George L. Stow, for plaintiff. R. M. Harvey and Hale K. Darling, for defendant.

ROWELL, C. J. This is case for Injury on a bridge. The notice designates the place of injury as "on the first bridge in the highway beyond the residence of C. J. Kingsbury" as you go westerly from Gilbert O. Smith's place. It appeared that there were two small wooden culverts of less than 18 inches span, covered with plank, between Kingsbury's and the bridge on which the injury was received. The planking of the first culvert beyond Kingsbury's was not over 3 feet wide, and that of the second culvert averaged about 3% feet wide. The bridge in question was also of wood, and covered with plank. Its span was 15 feet, and its length 17 feet. The defendant objected that the notice was Insufficient, for that said bridge was not the first bridge beyond Kingsbury's, but the third bridge. Both sides gave evidence as to the material, size, and structure of these culverts, and as to the amount of water that passed through them. There was not much conflict in this evidence, except as to the amount of water. The court announced that it thought the notice legally sufficient, but offered to submit the question with instructions whether there was any bridge between Kingsbury's and the one on which the accident happened, if the plaintiff desired. As neither party expressed a desire to go to the jury on the question, the court understood that both claimed it to be a question of law, and thereupon held the notice legally sufficient This ended the question if it involved an element of fact. This comes within the principle of Mascott v. Ins. Co., 69 Vt. 124, 37 Atl. 255. But the defendant says it did not but was purely a question of law, for that the words "bridge" and "culvert," as used in the statute, mean the same thing, and cannot be differentiated by testimony nor construction; and that the court should have so ruled, and held the notice Insufficient. But we do not think so. The statute gives an action for damages caused by reason of the Insufficiency of "any bridge or culvert" that the town is liable to keep in repair. Now the word "or" may be used to join, as alternatives, terms expressing different things, as well as to join different terms expressing the same thing; and it is considered that the former is its use here, so that it does not co-ordinate "bridge" and "culvert," and make each in turn the equivalent of the other, but specializes one to one meaning and the other to another meaning, thus making the statute mean as though it read, "either a bridge or a culvert," in which case we should clearly have two things, though of the same class. This construction is supported by the history of legislation on this subject. Down to 1839 the words of the statute were, "any highway or public bridge." In the Revision of 1839 the words were, "any highway or bridge." These words were retained till 1880, when No. 62, p. 63, of the acts of that year repealed the provisions then existing relating to the liability of towns for damage on highways and bridges, except as to bridges of not less than eight feet span, and gave an action for damages on such bridges only. This...