Sowles v. Moore
| Citation | 26 A. 629,65 Vt. 322 |
| Parties | HENRY L. SOWLES v. WILLIAM P. MOORE ET AL |
| Decision Date | 22 April 1893 |
| Court | United States State Supreme Court of Vermont |
GENERAL TERM, 1893
Case for the negligence of the defendant. Trial by jury at the February term, 1892, Ross, Ch. J., presiding. Verdict and judgment for the defendant. The plaintiff excepts. The opinion states the case.
Judgment affirmed.
Jed P. Ladd for the plaintiff.
Before ROSS, CH. J., TAFT AND ROWELL, JJ.
This was an action of trespass on the case brought to recover the value of a pair of horses, which were drowned in Lake Champlain, through the alleged negligence of the defendants in not properly guarding an opening in the lake where they had been taking ice near a line of public travel.
The plaintiff's evidence tended to show that his son had occasion to drive onto the lake on the day of the accident that the wind was blowing and the ice was glare; that in turning the team around the sled slewed and brought the pole against the horses' legs, frightening them; that they escaped from the driver and ran rapidly from forty to sixty rods and into the opening, which was twenty to thirty feet long by forty to sixty feet wide, and but little guarded.
The statute, R. L. s. 4,321, does not prescribe the manner in which such openings, shall be guarded. It imposes a fine upon persons who, in localities where people are accustomed to travel, make openings and do not place suitable guards around them.
The jury found by special verdicts that the opening was not properly guarded, and that the plaintiff's servant was in the exercise of due care in respect to the team and the management of it.
The errors assigned were in the court's submitting to the jury to find whether the horses would not have run into the opening if it had been properly guarded, whether the guards would have stopped them, considering their fright and the speed with which they were running, and in the instructions that the plaintiff must make out that the horses were drowned by reason of the failure of the defendants to properly guard the opening; that if the guards would not have prevented the casualty the plaintiff could not recover, although he was in the exercise of due care and the defendants were negligent that if the jury were satisfied by a fair balance of evidence that the horses would have been turned away by a suitable guard, then the defendants' negligence caused the damage.
These instructions did not contain a new proposition of law. It is a general rule that negligence must not only be alleged and proved, but it must also be shown that it caused the injury complained of. When injury on the part of the plaintiff and negligence on the part of the defendant concur, the plaintiff cannot, nevertheless, recover, if the defendant could not, by the exercise of due care, have prevented the accident from occuring. Red. & Shear. on Neg. s. 8. In cases that arose under our former statute rendering towns liable for injuries caused by defective highways, it was not sufficient to prove the existence of defects. It must also have been shown that the defects caused the injuries alleged. Lester v. Pittsford, 7 Vt. 158.
Were the horses in such fright and running at such speed that they would have been turned from their course by such guards as reasonably prudent men would have erected? This was a material question of fact for the jury to decide before they could say whether or not the defendants' negligence in respect to a guard was the cause of the casualty. Both questions were involved in the instruction that the plaintiff must make out "that the horses were drowned by reason of the failure of the defendants to properly guard the hole."
Suppose damages were claimed of a town, caused by an alleged defective railing upon a bridge; could the question be excluded from the consideration of a jury, upon proper evidence, whether from the nature of the accident a suitable railing could have prevented it? We think not.
In Titcomb v. Fitchburg R. R. Co., 94 Mass 254, 12 Allen 254,...
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