George Britch v. Town of Sheldon

• Citation: 110 A. 7,94 Vt. 235
• Parties: GEORGE BRITCH v. TOWN OF SHELDON
• Decision Date: 08 May 1920
• Court: United States State Supreme Court of Vermont

110 A. 7

94 Vt. 235

GEORGE BRITCH v. TOWN OF SHELDON

Supreme Court of Vermont

May 8, 1920

February Term, 1920.

ACTION OF TORT for negligence occasioned by the alleged insufficiency and want of repair of a certain bridge or culvert. Plea, the general issue. Trial by jury at the March Term, 1919, Franklin County, Wilson, J., presiding. At the close of the plaintiff's evidence, the Court directed a verdict for the defendant. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

M H. Alexander for the plaintiff.

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

OPINION

TAYLOR

The plaintiff seeks to recover damages occasioned by the alleged negligence of the defendant town in not maintaining a certain bridge or culvert on one of its highways in a safe condition for travel. The trial was by jury. At the close of the plaintiff's evidence the court, on motion, directed a verdict for the defendant, to which the plaintiff saved an exception. The grounds of the motion were in substance that on the undisputed evidence (1) plaintiff's accident occurred at a place on the highway other than on a bridge sluice, or culvert, or the approaches thereto; (2) there was no shortage of legal duty on the part of the defendant; (3) the plaintiff was guilty of negligence contributing to the injury complained of. The court held that the case was for the jury on all grounds except the last, but that on the plaintiff's own testimony he was guilty of contributory negligence as matter of law. The evidence in the light most favorable to the plaintiff tended to show the following facts: The accident occurred at a small bridge or culvert on the main highway in the defendant town leading from Enosburg Falls to Sheldon. The town authorities were repairing the culvert and had provided a temporary byway around it. The culvert had been torn out, and the traveled track of the highway was further obstructed by the materials, a derrick, and a dirt box used in making the repairs. The evidence was somewhat meager with respect to barriers. One witness speaks of "some dirt and some boards or stuff of that nature on either side of the sluice," and on the east side "some dirt, some boards or lumber, and some guy wires." Another witness testified that, besides the materials for work on the culvert, there was, as he remembered it, on the west side of the culvert, 30 or 35 feet from it, a stick with one end on a pile of dirt, or a post, with a lantern hanging on it, and on the east side, 20 or 25 feet from the culvert, a similar barrier-- "perhaps a little heavier stick." The plaintiff describes the barrier on the east side (the side on which he approached the culvert at the time of the accident) as a plank, one end on a pile of dirt and the other end on the ground, low enough so that the horse he was driving stepped over it. As a further precaution, three lanterns were placed in the vicinity of the culvert, one hanging from the barrier in the highway on each side of the culvert, and the third from a post in the temporary bridge. These lanterns were burning as early as 7:30 o'clock on the evening before the accident, but whether they were there when the plaintiff passed about a half an hour earlier did not appear. He makes no mention in his testimony of having seen the lanterns at that time. Before midnight all the lanterns, except the one in the highway west of the culvert, had gone out. The globe of that lantern was then badly smoked, and it was apparently nearly ready to go out, being then scarcely visible to one approaching the culvert from the east. Neither of the lanterns was burning at the time of the accident.

The accident occurred about 2 o'clock in the morning of the night of August 13, 1916. The plaintiff, then 26 years old, was employed as a farm hand in the town of Sheldon. He was somewhat acquainted with the highway in question, though "not awful well," and had driven over it a few times in the previous four or five years. On the evening before the accident he had occasion to go to Enosburg Falls, and passed the culvert about 7 o'clock; the sun being still up. He noticed (so far as appeared for the first time) that the culvert was undergoing repairs, and realized that one had to take the byway to pass it. The horse he was driving was about six years old, a safe and quiet driver, and fairly good to follow the road at night. He had owned her for about a year and a half, and had driven her a good deal, principally at night, as he had to work daytimes. On the return trip plaintiff left Enosburg Falls about 2 o'clock in the morning. It was very dark and had commenced to rain. He was riding alone in a buggy with the top up, and was smoking. He stopped to water his horse at a trough about half a mile east of the culvert, and, being chilly, put on an extra coat. The material part of his testimony as to the happening of the accident was as follows: "After I left the watering trough, * * * I was driving just a fair road gait, letting the mare take her own gait, and it never entered my head about that bridge, not seeing any lights or anything; and the first thing I knew she come right up, she kind of slowed up a little, and I pulled up on her, and she just stepped over something. I didn't know at the time what it was, but did shortly afterwards; it was a plank, one end of it on a pile of dirt, and the other end on the ground. I heard a lantern go, and I set right up on her, but the plank shoving scared her. My hind wheel caught the guy wire holding the derrick, and when it did it threw me right over the mare, and she went off on the side of the bridge into the slough hole, buggy and all." Plaintiff testified further in cross-examination that after leaving the water tub he let the mare go exactly as he would if he had known the road was all right; that he wouldn't have trusted her to go by herself around the byway; that, if he had thought anything about it, he should have known that he would have to guide her. In answer to the question, "On your way home that night, what did you do in the way of exercising some care or precaution to find this place in the road where the sluice was being put in?" he said: "I didn't think anything about it. I thought it would be lighted. It didn't enter my head."

No question is made but that the evidence was at least sufficient to make the question of due care on the part of the plaintiff one of fact for the jury, if he had not previously known the condition of the highway at the place of the accident. Nor, on the other hand, is it claimed that he was not guilty of contributory negligence as a matter of law if he should have kept the obstruction in mind and exercised active care to avoid it. The controlling question is whether, in the circumstances, his temporary forgetfulness of the danger was in law sufficient to defeat his right of recovery; or, in other words, whether a jury would be justified in finding on the evidence that he was exercising the care of a prudent man in the circumstances, notwithstanding his temporary forgetfulness. It was said in Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 303, 52 A. 531, 93 A. S. R. 887, that the prudent man is not the man who never forgets, who is never guilty of inattention, who never fails to think of any possible danger--that is the perfect, the infallible man; that attention...