Lynds v. Town of Plymouth

• Decision Date: 22 July 1901
• Citation: 50 A. 1083,73 Vt. 216
• Court: Vermont Supreme Court
• Parties: LYNDS v. TOWN OF PLYMOUTH.

50 A. 1083

73 Vt. 216

LYNDS

v. TOWN OF PLYMOUTH.

Supreme Court of Vermont Windsor.

July 22, 1901.

Exceptions from Windsor county court; Tyler, J.

Action by Jessie C. Lynds against the town of Plymouth for injuries received owing to a defective bridge. There was a judgment for plaintiff, and defendant excepted. Affirmed.

The witnesses Tarbell, Wilson, Green, the Slacks, and the Hubbards testified to accidents that had befallen them in driving over the bridge in question.

Argued before TAFT, C. J., and ROWELL, MUNSON, START, WATSON, and STAFFORD, JJ.

Gilbert A. Davis and Edward R. Buck, for plaintiff.

William E. Johnson, William W. Stickney, and John G. Sargent, for defendant.

TAFT, C. J. Eight questions reserved upon trial have been argued by the defendant's counsel. 1. The defendant claims that the structure where the accident happened was not a bridge. The court ruled that it was a "broken-down bridge," and to this ruling the defendant excepted. In the notice to the town it is termed a "small bridge, otherwise called a culvert," and according to the lexicographers it might well, in its original condition, have been called either. The defendant claimed that the question whether it was a bridge or not should have been submitted to the jury; and so it should have been, had the testimony as to its character been in dispute. But the condition of the structure was shown by the testimony of one Moore, and both parties claimed his testimony was true, and from it one can only come to the conclusionthat he very accurately and fully described what the court was correct in saying was a "broken-down bridge."

2. The testimony of Tarbell, Wilson, Green, the Slacks, and the Hubbards was admissible. The witnesses passed over the broken bridge, and their testimony tended to show its condition. It was descriptive of the place of the accident. The case of Walker v. Town of Westfield, 39 Vt. 246, is full authority upon, this point.

3. An additional objection was made to the testimony of Ebenezer Slack upon the ground that in answer to the question, "What condition was it [the bridge] in?" he stated it was broken in, "unsafe"; and it is claimed that stating it was unsafe was, in effect, giving his opinion as to the sufficiency of the bridge. We do not find upon the record any reference to this question, but, if it was 'reserved, there was no error. The question was proper, but the answer was not responsive. Error cannot be predicated upon an improper answer to a proper question. Morse v. Town of Richmond, 42 Vt 539; Houston v. Russell, 52 Vt 110; Frary v. Gusha, 59 Vt. 257, 9 Atl. 549; Lawrence v. Graves' Estate, 60 Vt 657, 15 Atl. 342; Hawks v. Town of Chester, 70 Vt 273, 40 Atl. 727.

4. Bertha Manning was called as a witness by the defendant, and testified in chief that soon after the accident the plaintiff told her that in going down the hill towards the bridge the harness broke, and the horse ran down the hill; these admissions tending to show that the accident took place south of, and not at, the bridge. On cross-examination the witness stated that a few minutes after the above conversation the plaintiff told her that her (plaintiff's) folks had forbidden her driving the horse, or having anything to do with it at all. The plaintiff was permitted, under exception, to deny that she so told the witness Manning. Was this action of the court erroneous? The defendant claims that the testimony was put into the case by the plaintiff, and therefore she could not contradict it by independent proof. It does not appear but that the testimony was given in answer to questions properly put in cross-examination. The fact seemed to have been treated as pertinent, and not collateral. We infer it bore upon the character of the horse or the skill of the driver. A party may put almost any question which he considers important to test the accuracy or veracity of a witness (Stevens v. Beach, 12 Vt. 585, 36 Am. Dec. 35Q), and, if the answer is not of a collateral fact, the party may contradict it We do not construe the exceptions as showing that the plaintiff was not in the strict line of cross-examination. The rule applicable is stated thus: "When a party, in cross-examination of a witness, asks irrelevant questions, or...