Elisha Bigelow, Admr. of Edmund C. Morse's Estate v. Town of St. Johnsbury
| Decision Date | 08 November 1918 |
| Citation | 105 A. 34,92 Vt. 423 |
| Parties | ELISHA BIGELOW, ADMR. OF EDMUND C. MORSE'S ESTATE v. TOWN OF ST. JOHNSBURY |
| Court | Vermont Supreme Court |
February Term, 1918.
ACTION OF TORT to recover for death of intestate caused by defect in a culvert in highway. Plea, the general issue. Trial by jury at the June Term, 1917, Caledonia County, Fish, J presiding. Verdict for the plaintiff. The defendant excepted.
Judgment affirmed.
Searles & Graves for the defendant.
Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.
This action is brought under the statute, in the name of the personal representative of Edmund C. Morse, deceased, for the benefit of his next of kin, for damages sustained through his death in an automobile accident when traveling upon a public highway in the town of St. Johnsbury, on the 22nd day of October, 1916.
At the close of the evidence the defendant moved for a directed verdict on grounds stated in its brief under four heads as follows: (1) The place of the accident was not a culvert, within the meaning of the law; (2) negligence on the part of the town is not shown; (3) the decedent was guilty of contributory negligence; and (4) no recovery can be had, because notice of the accident was not given as required by statute. The motion was overruled, and exception saved.
The evidence introduced on the trial is stated below only so far as is necessary in disposing of the foregoing motion, outside of which no question is presented.
The evidence showed, or tended to show, stated in its most favorable light to the plaintiff, the following facts: At the time of the accident Morse (the decedent), accompanied by his wife, and the Misses Alice F. Bancroft, Maud E. Wetherby, and Amelia D. Lee, was driving his automobile northerly over the public highway between St. Johnsbury Center and Lyndon, going north. This road is much traveled. The place of the accident is some five hundred feet north of the railroad crossing, known as the "Cobb Crossing." Along there for some distance the road was constructed by a sidehill cut most of the way, removing material from the upper or west side and placing it on the lower or east side to make the fill. The evidence as to the length of the fill varied, showing it to be from 79 feet to 200 feet long. The width of the traveled portion of the road over the fill varied from 13 1/2 feet to 17 feet and 9 inches. At the culvert it was "a bad narrow place." Beneath the surface of the highway at a certain place in this fill is a culvert consisting of a tile drain, eight inches inside diameter, covered by the fill, and down four or five feet from the top of the edge of the road. The bank there is quite steep and near six feet high on the easterly side of the road. On that side the tiling seems to be protected only by earth. On the westerly side of the road there is a high ledge which goes up to the height of 25 to 30 feet, but it does not extend so far north as the culvert. Between the ledge and the culvert, and extending some farther north, the ground is higher than the road and slopes towards it. At the upper end of the culvert, rocks and stones are built up to the height of two or three feet around the tiling. The drain extends diagonally across the road, and on the culvert there is a curve in the road toward the east. The culvert runs through the fill, except at the upper side of the road, and consequently no part of the fill was necessary (in constructing the road) as an approach or as approaches to the culvert, and none of it was put in for such purpose. No stream of water runs through there regularly, but the culvert is necessary in the spring of the year, and in times of rain storms, to carry off surface water. The object of the fill was to improve the grade, not to fill up to the structure of the culvert so that travelers may the better pass over it. There was a fence on the bank of the fill, made of wooden posts about four or six inches in diameter, set in the ground, and boards an inch in thickness nailed thereto. Over the culvert and along southerly from it for some distance, the posts were rotten where they went into the ground, and the boards were old, weather beaten, and rotten; and along the same place and distance the fence was down the bank about eighteen inches below the level of the road, and leaning more or less outward from the road. New filling had been put into the road, making it higher than the top of the ground where the fence posts were.
The accident occurred on Sunday evening about 6:30 o'clock. The night was very cloudy and quite dark. The decedent was seated on the left hand side of the front seat. His wife sat beside him. The young ladies mentioned sat on the rear seat. When at the Cobb Crossing they noticed the lights of two automobiles which were coming from the north on the other side of where the accident happened. They saw the two cars coming and spoke about them. The car ahead was being driven by one Dudley who was accompanied by his wife; the other car was occupied and being driven by one Shepard. On the trial of this case, Dudley testified that his car met and passed the decedent's car about thirty feet south of the culvert; that at that time both cars were running slowly because of the curve in the road; that the decedent's car, with its lights burning, "was coming along the road very slowly," and shortly after he passed it the car seemed to strike the fence and at the same time rolled sidewise over the embankment; that at the time the car went over it was running extremely slow or had practically stopped; that the fence offered no resistance to the car, it broke, and the part hit by the car simply fell over the bank; that he did not think it scraped the fence before it went over--went over about the time it struck the fence; that the lights from Shepard's car shone directly on decedent's car, and lighted up the road very clearly; that he did not notice the tiling (of the culvert) that night, but was there later and could pick out the place where the car landed at the bottom of the bank; that this was at about the same point as the mouth of the tile,--he found glass there evidently from the windshield of the car.
Morse and his wife were almost instantly killed, and Miss Wetherby was so injured that she was thereafter unable to remember very much about the accident.
Shepard who was driving the second car seen coming from the north, testified to seeing the accident; that at the time it occurred he was a little north of the place where it occurred and going south, facing it; that he saw the decedent's car and Dudley's car meet, and that about the length of a car past their meeting the lights of the decedent's car began to tip and the car went over; that he ran down to where the car was and did what he could in helping to lift the car and get the people out from under it; that he visited the scene of the accident the next afternoon, and then examined the fence, or rather noticed a new fence there; that where the car went over the bank the dirt seemed to be soft; that he should think the car went down six feet before it stopped, and should think the tile...
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