Graves v. Town of Waitsfield

• Decision Date: 11 March 1908
• Citation: 81 Vt. 84,69 A. 137
• Court: Vermont Supreme Court
• Parties: GRAVES v. TOWN OF WAITSFIELD.

69 A. 137

81 Vt. 84

GRAVES

v. TOWN OF WAITSFIELD.

Supreme Court of Vermont. Washington.

March 11, 1908.

Exceptions from Washington County Court; John W. Rowell, Chief Judge.

Action by Harriet J. Graves against the Town of Waitsfield. There was a judgment for plaintiff, and defendant excepts. Affirmed.

Argued before TYLER, MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ.

J. P. Lamson and J. G. Wing, for plaintiff. Zed S. Stanton and John W. Gordon, for defendant.

POWERS, J. This is an action wherein the plaintiff seeks to recover damages for injuries received through the alleged insufficiency of the approach to a highway bridge in the defendant town. It appeared at the trial that a written notice was seasonably given to the selectmen of the town, but when it was offered in evidence by the plaintiff it was objected to on several grounds, and the first exception raises the question of its sufficiency. We can do no better than to quote this notice at length:

"To Robert McAllister, Clarence Richardson, and Fred Wilder, Selectmen of the Town of Waitsfield, in the County of Washington—Sirs: I hereby notify you: That I shall claim damages of said town of Waitsfield in consequence of an accident which happened or occurred to me on the 22d day of September, 1903, on account of the insufficiency of the highway, while traveling on the public highway in your town on the road leading from Warren village to Waitsfield, on the approach of the bridge spanning a stream known as Somerville brook; said bridge being known as the Poland Bridge, and being between the dwelling house of Oscar Poland, on the Warren side of said Somerville brook, and Hiram Stoddard's house, on the Waitsfield side of said Somerville brook, and being the only bridge between said houses of said Poland and said Stoddard. I had passed over said bridge going toward Waitsfield, and was on the approach of said bridge, when at a distance of 12 or 14 feet from the end of said bridge, going toward Waitsfield, when said accident occurred. The road where said accident happened was narrow, and the bank on the right-hand side of said road going toward Waitsfield was about 7 feet high and about 2 feet from the travel of the road. That the place where the accident happened was the approach to said Poland Bridge on the end leading toward Waitsfield. That the insufficiency of said approach was it was narrow and without any sufficient railing or muniment or guard, or any sufficient protection to prevent teams from going off said approach on said right-hand side of said approach going toward Waitsfield as aforesaid, and by reason of the insufficiency of the guard or railing or muniment on the right-hand side of said approach to said bridge as aforesaid my team, consisting of one horse and a single wagon with top, with myself and husband in the wagon, was thrown down over the embankment to the right-hand side of said approach to said bridge, which approach it was the duty of the town to keep in repair, by reason of which I received the following injuries: A severe cut and bruise on the back of my head, and my head was otherwise injured. My left hip was bruised and made sore and lame. I was hurt and made lame through my chest and bowels; and I was badly jarred and shaken up, and bruised so that my whole body was badly affected and my nervous system was injured. That I was rendered unable to perform any labor for several days after the said injuries, and am still unable to perform manual work of any kind. And you are hereby notified that I do, and shall, claim to recover damages of said town of Waitsfield for my said injuries and expenses of my cure, and for medical attendance and all expenses consequent from the same. Waitsfield, Vt. October 10th 1903. Harriet J. Graves."

The defendant's objections to this notice, 11 in number, challenge its sufficiency in three respects: (1) That it does not sufficiently locate the place of accident as on a highway which the defendant town was bound to keep in repair; (2) that it does not sufficiently point out the insufficiency of the approach; and (3) that it does not sufficiently describe the injuries received. The court below held the notice sufficient as to the first two points, and sufficient as to the injuries down to and including the word "bowels," but insufficient as to all injuries specified after that word, and admitted it accordingly, to which the defendant excepted.

The notice sufficiently locates the place of injury as on a public highway which the town was required to keep in repair. The language is "while traveling on the public highway in your town"; and the notice is addressed to certain persons as selectmen of the town of Waitsfield. This is equivalent to a statement that the highway in question was in that town, which is all that is required, as was recently held in Skinner v. Weathersfield, 78 Vt. 410, 63 Atl. 142.

Nor was there error in the ruling as to the character of the insufficiency. The notice describes the approach as narrow, with an embankment on the side where the accident occurred, without any sufficient protection to keep teams from going off on that side. The statute requires that the notice shall-point out in what respect the bridge is insufficient or out of repair. This provision goes no farther than to require the notice to designate the insufficiency which caused the accident with reasonable particularity and certainty. This the notice in question does, for it points out the insufficient railing as the cause of the accident with as much particularity as did the notice in Bliss v. Whitingham, 54 Vt. 172. Indeed, in this respect, it is quite like the notice in Tinkham v. Stockbridge, 64 Vt. 480, 24 Atl. 761, which was held to be sufficient.

The court was correct too in admitting so much of the notice describing the injuries as was received in evidence. The requirement of the statute is that the notice shall state the part of the body injured, with the extent and effect upon the health of the person injured. A person is not required to give an accurate diagnosis of his bodily hurt, but to describe it and give it character, as he understands it. Nourse v. Victory, 51 Vt. 275; Perry v. Putney, 52 Vt. 533. The description in this notice as to the injuries to the head is much like that in Lynds v. Plymouth, 73 Vt. 216, 50 Atl. 1083; that of the injury to the hip like that in Perry v. Putney, supra; and that of the injury to the chest and bowels like that in Willard v. Sherburne, 59 Vt. 361, 8 Atl. 735.

Subject to the defendant's exception, the plaintiff was permitted to show that her left hip was black and blue and bruised. The only objection to the admissibility of this evidence was that it was not covered by the notice. But the bruise was specified, and the discoloration was so much a natural consequence and condition of such an injury as to make evidence of it admissible.

The plaintiff was allowed, subject to exception, to show that a doctor prescribed remedies for her hip and bowels, and what these remedies were. The only objection made was that there was nothing said in the notice or declaration about what these prescriptions were. It was not necessary. The statute does not go that far. That injuries will require treatment and the application of appropriate remedies is a matter of common knowledge; and the statute does not require the notice to specify those employed in a given case.

The testimony of Dr. Howe that he found the plaintiff in a...