theodore S. Cummings, Administrator v. Town of Cambridge

• Decision Date: 07 June 1919
• Parties: THEODORE S. CUMMINGS, ADMINISTRATOR v. TOWN OF CAMBRIDGE
• Court: Vermont Supreme Court

107 A. 114

93 Vt. 349

THEODORE S. CUMMINGS, ADMINISTRATOR v. TOWN OF CAMBRIDGE

Supreme Court of Vermont

June 7, 1919

November Term, 1918.

TORT FOR NEGLIGENCE. Plea, the general issue. Trial by jury at the June Term, 1918, Lamoille County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

F G. Fleetwood and M. P. Maurice for the defendant.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

MILES

This is an action to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the defendant's negligence in the maintenance of a bridge which by law it was bound to keep in repair.

The bridge in question crossed a small stream running southerly at the point of accident, and the highway approaching the bridge from the south ran northerly until near the bridge when it curved easterly to meet the bridge and, crossing the same, extended northeasterly along the northerly side of premises occupied by one Frank Nichols. The residence of the intestate at the time of the accident was on this highway southerly of the bridge, and from his place of residence the highway descended to the bridge.

On the day of the accident the intestate started out to get some cows which were in the highway, taking with him a dog, and when last seen before his death was within one hundred feet of the bridge, running toward it and trying to get past the cows to turn them back home. Shortly after this the bridge was discovered broken down and thirteen of the cows were in the meadow of Nichols, eight or ten of which were wet. The dog also returned home wet, and still later the intestate was found dead in a mill pond a short distance below the bridge. There was evidence in the case tending to show that before the body was found below the bridge, it was discovered under the bridge and under some of the broken timbers.

The only exception insisted upon by the defendant in this Court is to the refusal of the trial court to grant the defendant's motion for a directed verdict, and that exception presents the single question of whether the plaintiff's evidence fairly and reasonably tended to show that his intestate was without negligence proximately contributing to his death.

The burden of showing this was upon the plaintiff, and that fact could not be presumed (Boyden's Admr. v Fitchburg R. R. Co., 72 Vt. 89, 47 A. 409), and this the plaintiff does not dispute; but all that was required of the plaintiff upon this branch of the case was to produce evidence which, viewed in the light most favorable to him, tended to show that no want of care on the part of the intestate contributed to his death. Place v. G. T. Ry. Co., 82 Vt. 42, 71 A. 836; Duggan v. Heaphy, 85 Vt. 515, 83 A. 726; Boyden's Admr. v. Fitchburg R. R. Co., supra. It is elementary that, if there is any substantial evidence supporting the plaintiff's claim, the court will not direct a verdict for the defendant, but must submit the case to the jury. Schofield v. Metropolitan Life Ins. Co., 79 Vt. 161, 64 A. 1107, 8 Ann. Cas. 1152. The evidence need not be that of an eye-witness, nor is it necessary that there should be evidence distinctly directed to that negative proposition (Duggan v. Heaphy, supra, and authorities cited; Shumm's Admx. v. Rut. R. R. Co., 81 Vt. 186, 69 A. 945, 19 L.R.A. [N.S.] 973); but the facts may be established by circumstantial evidence alone, as in Lazelle v. Newfane, 69 Vt. 306, 37 A. 1045. These rules of law, we understand, are not disputed by either party, and the determination of the question brought here, as we have already said, rests entirely upon the question of whether there was any evidence...