Thompson v. Town of Stannard, 290

• Decision Date: 01 June 1965
• Docket Number: No. 290,290
• Citation: 125 Vt. 140,211 A.2d 253
• Parties: Frank THOMPSON v. TOWN OF STANNARD.
• Court: Vermont Supreme Court

Page 253

211 A.2d 253

125 Vt. 140

Frank THOMPSON v. TOWN OF STANNARD.

No. 290.

Supreme Court of Vermont.

June 1, 1965.

Maxwell L. Baton, Newport, for plaintiff.

Lee E. Emerson, Barton, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

This is an action of tort, instituted under the highway law to recover for personal injuries claimed to have been suffered by reason of the insufficiency and want of repair of a culvert. The statutory provision invoked is 19 V.S.A. § 1371: 'If damage occurs to a person, or his property, by reason of the insufficiency or want of repair of a bridge or culvert which the town is liable to keep in repair, the person sustaining damage may recover the same in an action of tort on this statute. * * *'

Shortly before noon on October 19, 1958, the plaintiff was riding as a passenger with other members of his family in an atutomobile operated by his son-in-law, Stewart Silver. The car was traveling west on the defendant's town highway leading from Stannard Village to Greensboro Bend. The culvert in question traversed the highway furnishing drainage from a field about highway level on the north to a lower level meadow on the south.

At the north end of the culvert there was a hole in the highway surface which extended about one foot into the traveled portion of the dirt road. The presence of the depression in the road was obscured by fallen leaves which had collected in the pit.

The evidence was undisputed that the car in which the plaintiff was riding was traveling at a speed of twenty to twenty-five miles an hour. It left the highway at or near the culvert and crashed into a maple tree, standing twenty-three feet west of the culvert at the edge of the highway.

Bruce Kallahan, a Vermont State Police officer summoned to investigate the accident, observed the wheel tracks which marked the course of travel of the Silver vehicle on the graveled surface of the highway. He testified the tracks led from the right side of the vehicle, as it was lodged against the tree, and passed through the hole above where the culvert intersected the road.

The police officer's testimony on this point was disputed by witnesses for the defendant who visited the scene. They gave evidence that they observed tracks, east of the culvert, which led to the damaged car. The defendant's evidence was that the wheel tracks did not cut across the pit, but went astride it.

After some four hours of deliberations which were interrupted by requests for further instructions, the jury found from the defendant. The plaintiff appeals and assigns error to the manner in which the court defined and explained the issues.

Early in the charge, the court defined the first issue upon which the plaintiff had the burden of proof was '(1) That the accident which caused the injury occurred while the plaintiff was passing over the culvert. That is the first thing they must prove--that the injury occurred while he was passing over the culvert in question. (2) That the culvert was insufficient or in want of repair. That is the second thing he must prove. (3) That this insufficiency or want of repair, if any, was the direct cause of the injury sustained.' These issues were repeated in substantially the same context ten or more times during the course of the instructions.

On one such occasion, the court commented: '--the first was that the accident which caused the injury occurred while the plaintiff was passing over the culvert. Liability under the statute is restricted--. It is limited to bridges, culverts and their approaches. The highway is not included. The statute does not go that far. So for the plaintiff to recover, the accident must have occurred while passing over the culvert; otherwise there can be no recovery. Now that is number one--must have occurred while the vehicle in which he was riding was passing over the culvert.'

The plaintiff objected at the trial to the numerous statements by the court that it was incumbent on the plaintiff to show that 'injury occurred while passing over the culvert'. His exception suggested a correction to indicate that his burden was to show the injury was caused while passing over the culvert by reason of its insufficiency.

The full text of the instructions came very near to directing a verdict for the defendant on the first issue as defined by the court. At least the language used by the court is susceptible to the construction that the plaintiff was required to establish that his injuries were experienced while the vehicle was in the very act of passing over the culvert. By the same token it permits the interpretation that if no injuries were sustained until after the automobile had passed entirely over and beyond the culvert, there could be no recovery.

This was a prominent theory of the defense, and the defendant urged it upon the trial court as a ground for granting its motion for a directed verdict at the close of the plaintiff's evidence. On appeal, the defendant contends that this construction of the charge was sound. And the defendant maintains that since the accident resulted some twenty three feet beyond the culvert, any undue emphasis given this issue was harmless since the cause should not have survived the town's motion for a directed verdict.

It is abundantly clear from the record that this aspect of the instructions troubled the jury. After deliberating more than three hours the jury returned into court. The foreman advised the presiding judge that they had not reached a verdict. He went on to explain 'we have a question in our mind on your charge'. The court restated the issues as originally given. When asked if there was anything further, the forman answered: 'Your Honor, the doubt in our minds seems to be on the first article for the plaintiff, which I believe was presented by you several times, with a little different wording.'

The confusion which attended the instructions to the jury and its deliberation concerning the place of injury undoubtedly developed from some of the earlier cases dealing with actions on this statute in different factual settings, notably Ford v. Town of Braintree, 64 Vt. 144, 146, 23 A. 633.

The opinion in that case points out that prior to 1880, towns were liable for damages that arose from insufficiency of highways as well as bridges. Liability for highway disrepair was later removed except where culverts, bridges and their approaches were directly involved. In Ford v. Town of Braintree a highway was washed out by reason of overflow from a culvert that was insufficient to carry off...