Parker v. Town of Pittsfield

• Citation: 88 Vt. 155,92 A. 24
• Parties: PARKER v. TOWN OF PITTSFIELD.
• Decision Date: 14 October 1914
• Court: United States State Supreme Court of Vermont

92 A. 24

88 Vt. 155

PARKER

v. TOWN OF PITTSFIELD.

Supreme Court of Vermont. Rutland.

Oct. 14, 1914.

Exceptions from Rutland County Court; E. L. Waterman, Judge.

Action by Sylvia A. Parker against the Town of Pittsfield. A judgment was rendered in favor of plaintiff, and defendant brings exceptions. Affirmed.

The notice to the town stated that the plaintiff, on the day named, was injured and sustained damages by reason of the insufficiency and want of repair of a culvert in a highway in said town of Pittsfield, etc.; that the place—

"was at the culvert in the highway known as the 'Liberty Hill Road' in said town of Pittsfield, which said culvert is located about 10 rods southerly from the point of junction of the said Liberty Hill Road, so-called, with the highway which leads from Pittsfield to Rochester, passing the farm house of Matt Hall in said Pittsfield; and that said culvert is the first culvert on said Liberty Hill Road, so-called, southerly from the point of junction of said two highways, and the highway herein designated as the Liberty Hill Road is the highway leading from Pittsfield to Rochester, and passing the farms of Charles Wescott, Rodney Swift, and others.

"And you are hereby further notified that the said culvert in said highway was insufficient and out of repair, in that the sides thereof were washed out, and the earth undermined and excavated to a great depth, to wit, to the depth of from two to three feet, and the said culvert was insufficient and out of repair, in that the same was too small to convey away the water flowing therein, and was and had been filled with dirt and refuse so as to prevent and hinder the escape and flow of water therein, and to cause the undermining and excavation of said highway at and near the sides of said culvert, and to make the same dangerous for travel and liable to cause injury."

The notice was received in evidence without objection. At the close of the evidence the defendant moved that a verdict be directed on the ground (among others):

"That the notice to the selectmen of the town of Pittsfield is insufficient, as the evidence shows that the accident to plaintiff did not occur at the place and within the limits of the place described in that notice as the place of the accident, but at an entirely different place outside of these limits."

The motion was overruled, and defendant excepted. The defendant's evidence tended to show that at a point about halfway between the junction of the road and the culvert where the plaintiff was injured there was a stone culvert in the highway that was 12 feet long as it crossed the highway, the sides made of cobblestones and covered with flat stones, the walls of the culvert 16 inches apart, and from the bottom of the covering stone to the dirt under the culvert, 6 to 8 inches; that in the driveway over this culvert the stones were covered with dirt, but the covering stones at each end on the sides of the road were not covered with dirt, and could be seen in passing along the road. The plaintiff's evidence tended to show that this culvert was small in dimensions, and the road graded on its surface on both sides of it in such a manner as to conceal it to a considerable extent from observation, and there was no unevenness in the road as it crossed the culvert. A witness for the plaintiff (her husband) testified that he went over the road for the purpose of describing the culvert in question, looking for other culverts or landmarks, and passed across this stone culvert without seeing or noticing it, and for this reason reported to plaintiff's attorney who made the notice that the wooden culvert at which the accident happened was the first culvert south of the junction formed by the roads as aforesaid. The plaintiff's evidence also tended to show that before the removal of the plank culvert (which was done the day following the accident) it was in substantially the condition described in the notice, with the road gouged out by the action of the waters close to the margin of the plank of the culvert, while there was no gouging out or undermining of the road near the stone culvert.

Special questions 1, 2, 3, and 4 were submitted to the jury as follows:

"1. Was there, May 12, 1911, between the junction formed by the Liberty Hill Road with the highway leading past Matt Hall's house to Rochester and the culvert on or near which plaintiff was injured a stone culvert substantially as described by defendant's witnesses, and as appears by the plan in the case?

"2. Was or was not this stone culvert the first culvert south of the junction of the roads above mentioned?

"3. Was there a plank culvert on this same highway?

"Was it or not situated at a point on the highway shown by the plan, and by the testimony of the defendant...