William R. Sharby v. Town of Fletcher

• Decision Date: 07 October 1924
• Parties: WILLIAM R. SHARBY v. TOWN OF FLETCHER
• Court: Vermont Supreme Court

127 A. 300

98 Vt. 273

WILLIAM R. SHARBY v. TOWN OF FLETCHER

Supreme Court of Vermont

October 7, 1924

May Term, 1924.

ACTION OF TORT under the statute to recover for personal injuries alleged to have been caused by the insufficiency and want of repair of a bridge or culvert in a public highway of the town of Fletcher. Plea, the general issue. Trial by jury at the September Term, 1923, Franklin County, Graham, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

W H. Fairchild, F. L. Webster, D. W. Steele, attorneys for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

The plaintiff seeks to recover for personal injuries caused by the alleged insufficiency and want of repair of a bridge in the defendant town. The defendant filed a special demurrer to the complaint which demurrer was overruled, and the defendant was allowed an exception which was ordered to lie and the defendant's rights thereunder "by leave of court were reserved until final hearing." Thereupon the defendant filed an answer denying the material allegations of the complaint, a trial was had by jury resulting in a verdict and judgment for the plaintiff, and the case is here on defendant's exceptions.

An overruled demurrer in a civil case at law is waived by pleading to the merits. German v. Bennington, etc., R. R. Co., 71 Vt. 70, 42 A. 972; White's Admx. v. Central Vermont Railway Co., 87 Vt. 330, 337, 89 A. 618; Niles v. Central Vermont Railway Co., 87 Vt. 356, 89 A. 629; Citizens' Savings Bank and Trust Company v. Northfield Trust Company, 89 Vt. 65, 94 A. 302, Ann. Cas. 1918A, 891. See, also, Patterson's Admr. v. Modern Woodmen, etc., 89 Vt. 305, 95 A. 692. In the latter case, as in the case at bar, the trial court undertook to secure to the demurrant the benefit of the demurrer until final hearing, but for reasons there stated, which we indorse, without avail. However, as against the only defect now relied upon, namely, failure of the complaint to count upon, or recite, the statute, the demurrer was properly overruled. The complaint states a cause of action under the statute, which is all that is required. Morrisey v. Hughes, 65 Vt. 553, 27 A. 205; Westcott v. Railroad Co., 61 Vt. 438, 17 A. 745; Inhabitants of Peru v. Barrett, 100 Me. 213, 60 A. 968, 70 L. R. A. 567, 109 A. S. R. 494; 21 R. C. L. 443.

The alleged insufficiency of the bridge was lack of suitable guards or railings at its sides to protect travelers thereon from driving or falling off at those points.

The defendant at the close of plaintiff's evidence and of all the evidence moved for the direction of a verdict in its favor on various grounds, among which was in substance this: That, upon all the evidence in the case, it did not appear that plaintiff's injuries were caused solely by the insufficiency or want of repair of said bridge, but, on the contrary, it did appear that such injuries were the result, in whole or in part, of the negligence of the driver of the truck. The motion was overruled, and the defendant had an exception.

It is not claimed that the negligence of the driver was imputable to the plaintiff. But it is stoutly urged that since the action is purely statutory--as it, of course, is--and the damages given by statute are such, only, as occur 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" (see G. L. 4615), no recovery can be had if the concurring negligence of the driver contributed to the injury. Numerous cases from other jurisdictions, among which are McMahon v. Harvard, 213 Mass. 20, 99 N.E. 458; Hayes v. Hyde Park, 153 Mass. 514, 27 N.E. 522, 12 L. R. A. 249; Place v. Town of Sterling, 86 Conn. 506, 86 A. 3; Bartram et ux. v. Town of Sharon, 71 Conn. 686, 43 A. 143, 46 L. R. A. 144, 71 A. S. R. 225; Orr v. City of Oldtown, 99 Me. 190, 58 A. 914; Whitman v. City of Lewiston, 97 Me. 519, 55 A. 414; Barnes v. Inhabitants of Rumford, 96 Me. 315, 52 A. 844, are cited in support of this proposition. But we have no concern with this question, since the record shows that the trial below proceeded upon the theory contended for by the defendant, and the case was submitted to the jury with this instruction: "If you find that a combination of the concurrent negligence of the driver of the truck, provided you find she was negligent, and the insufficiency of the bridge together constituted the efficient and proximate cause of the plaintiff's injuries, then * * * your verdict will be for the defendant," which was not excepted to by either party. Nor, indeed, did either party except to anything the court said concerning the negligence of the driver. So whether right or wrong, the rule thus adopted below is the law of the case.

This brings us to the question of whether the evidence was sufficient to take the case to the jury on the question of the driver's negligence. In considering the evidence for the purpose of determining this, certain well-established rules should be borne in mind. In the first place, the evidence must be considered in the light most favorable to the plaintiff. Morse's Estate v. Town of St. Johnsbury, 92 Vt. 423, 105 A. 34. Second, while, as the case was tried below, plaintiff undoubtedly had the burden of showing that the driver was free from such negligence as would prevent a recovery, to do this did not require evidence distinctly directed to that negative proposition. Duggan v. Heaphy, 85 Vt. 515, 531, 83 A. 726. Any evidence that tended to show that plaintiff's injuries were due solely to the alleged defects necessarily tended to show freedom from such negligence on the part of the driver. And finally, where the law has settled no rule of diligence, negligence is ordinarily a question for the jury, as it is a fact to be inferred from the attending circumstances. It can be ruled as a matter of law only when the facts are undisputed, and are so conclusive that but one reasonable inference can be drawn therefrom. If the evidence justifies opposing inferences, the question is always for the jury. Britch v. Town of Sheldon, 94 Vt. 235, 110 A. 7; Place v. Grand Trunk Railway, 82 Vt. 42, 71 A. 836; Place v. Grand Trunk Railway, 80 Vt. 196, 67 A. 545; Barber v. Essex, 27 Vt. 62; Swift v. Newbury, 36 Vt. 355; Drew v. Town of Sutton, 55 Vt. 586, 45 A. R. 644; Bancroft v. Town of East Montpelier, 94 Vt. 163, 109 A. 39. With these observations, we attend to the evidence material to the question before us.

These facts were undisputed: The accident occurred in the forenoon, on July 5, 1923. The plaintiff, then eight years of age, in company with a Mrs. Carey and her three daughters, Kathryn, Hazel, and Ardelle, was traveling in a Ford truck from the Carey home in the defendant town to the village of Fletcher Center over the highway of which the bridge in question is part. Kathryn and Hazel sat on the front seat of the truck, Mrs. Carey and Ardelle sat on the rear seat, and the plaintiff sat on the floor back of the rear seat. Kathryn was driving. The truck went off the west side of the bridge into the stream below.

The plaintiff's evidence tended to show these facts: The floor of the bridge is stone. Measured on the floor, it is 17.6 feet wide. On either side, resting on the floor, is, or was, a log 7 or 8 inches in diameter. Between these logs is 1.6 feet of dirt, in depth, so that the road bed, on the bridge, is 11 or 12 inches higher than the top of the side logs. The width of the traveled track, on the bridge, is 12.2 feet. Grass and tall weeds grew on either side of the traveled track, from the track to the side of the bridge, and beyond, except at the very opening. Going south from the bridge the road rises 10 1/2 feet in a distance of 268 feet, and going north it rises 8.8 feet in a distance of 232 feet. The road curves slightly to the west at the bridge. There is nothing about the bridge to apprise a traveler approaching from the south of its existence. The morning of the accident there were ruts in the road extending from a point more than 268 feet south of the bridge to and across the bridge; these ruts were not of uniform depth, but just south of the bridge, and on it, they were approximately 3 inches deep. It had rained the day and night before the accident and the road was slippery. The truck approached the bridge from the south at a speed of not more than ten miles an hour, and when it reached the top of the hill, a little more than 268 feet from the bridge, the driver "throttled down" the engine and ran "very slow" to the place where the accident occurred. The driver testified, in substance, that when about half way down the hill she attempted to turn the truck to the left out of the ruts, and got the front wheels out, but the rear wheels "caught * * * seemed to catch in the ruts," whereupon, she tried to turn the front wheels back into the ruts, and while so engaged the truck "just seemed to skid off, it skidded out" and went off the side of the bridge "into the brook." She testified further, that she was not conscious that they were going over at any time before they went over; that she at no time turned the left wheel of the truck out of the traveled part of the road, but "was on where other cars traveled"; that she did not apply the brake because the "truck was going so slow I didn't need it, and when it happened we went so quick I didn't have time."

On cross-examination she testified that she knew how to operate a car and apply the brakes; that she was familiar with the road and the location of the bridge, and knew that the bridge had no rail or other guard; that she knew the road was rutty and some...