Noyes v. Town of Morristown

• Decision Date: 01 March 1828
• Citation: 1 Vt. 353
• Parties: GILBERT NOYES v. THE TOWN OF MORRISTOWN
• Court: Vermont Supreme Court

1 Vt. 353

GILBERT NOYES v. THE TOWN OF MORRISTOWN

Supreme Court of Vermont, Orleans

March, 1828

[Syllabus Material] [Syllabus Material]

This was an action of Trespass on the case, brought on the statute to recover the amount of damages occasioned to the plaintiff by the insufficiency and want of repair of a certain public bridge in Morristown. It was tried in the County Court October term, 1827, on the general issue, ROYCE J. presiding. On trial, it appeared that the bridge in question was a high bridge over Lamoille river, eighty feet or more in length situated in a small village, and in the immediate vicinity of falls, on said river, and passing over a broken rocky bottom--all which circumstances were calculated to render a fall from said bridge extremely dangerous, if not fatal. It also appeared that at the south end of said bridge, an abutment was erected in the high bank of the stream connecting with said bridge, about twenty feet above the bottom of the river--that the abutment was considerably wider at the bank than at the end of the bridge; the latter being twelve feet wide between the upper strings--That the road, in descending to the bridge from the south, entered upon the same in such a manner that the travelled part inclined towards the lower, or westerly side of the bridge--That the abutment on that side was guarded with a railing connected with the railing on the bridge, but upon the upper or easterly side, the top of the abutment was guarded only by a log or stick of timber, fourteen and a half inches in diameter; and this guard or muniment extended from the shore to the railing on the body of the bridge--That the strings of the bridge, and planking or flooring, extended a short distance upon, and over, the abutment--And the railing of the bridge did not extend towards the shore so far as the plank or flooring, by a short distance--the witnesses varying from two to six feet-leaving no other guard but the log or stick of timber aforesaid. It appeared that when the bridge was finished, a stick of round timber, about ten or twelve feet in length, was fastened upon this spot in an inclined position, reaching from timbers near the end of the railing towards the shore, until the end rested upon the log, aforesaid, where it was pinned down. This stick had been removed and gone for a long time before the accident; and a witness testified that it was no part of the original bridge, not being directed by the builder, but had been one of the rollers used in building, and was placed there by the witness and another workman, rather in opposition to the will of the builder, who had only directed them to carry it off. It also appeared that the bridge was old, and the town, at the time of the accident, were collecting timber and other materials for a new bridge, which has since been erected in the same place. The flooring of the bridge had become partially unsound, and there were several holes therein, two of which were proved to be near the south end, within 8 or 10 feet of the planking--the largest being near the centre between two and three feet long, and wide enough to admit the foot of a horse. It appeared that these holes were usually covered with pieces of loose slabs or plank, but the covering was often removed, and the holes open, at which time the rapid stream below was visible through the bridge. Whether either of these holes were uncovered at the time of the accident, did not certainly appear; but the weight of evidence was, that neither of them was wholly if at all uncovered. It appeared that the plaintiff came to the bridge from the south in a single wagon drawn by the horse in question, four years old--that he descended the hill, and entered upon the abutment of the bridge, at a moderate and reasonable gait, and the horse, having stepped upon the first or second plank, suddenly sheered and inclined to the right against the aforesaid log or stick of timber, and went over, disengaging himself from the wagon, and fell either perpendicularly, or along the steep rocky bank, about twenty feet into the river, and was thereby destroyed.

The defendants introduced several witnesses who testified that this horse was unusually restive and skittish, and was apt to take fright, especially when passing over bridges--that the plaintiff had owned and used him several months, and was acquainted with his habits--that the plaintiff till within two or three months before the accident had for several years, resided in the immediate vicinity of the bridge--that at the time of the accident the river was considerably raised by a freshet, and that the plaintiff, in descending the hill to the bridge, did not drive in the centre of the travelled part of the road, but deviated to the right, about half the width of his wagon, so that when the horse began to sheer the off hind wheel was running within about eighteen inches of the log aforesaid--the abutment being at the place thirteen feet wide. The plaintiff introduced evidence tending to shew, that at the time in question the horse had in a considerable degree recovered of his aforesaid habits, and was not unsuitable in that respect for ordinary business. The defendants made, and insisted in, the following points. That the bridge and abutments were not insufficient, or out of repair, within the...