Bunker v. Inhabitants of Gouldsboro , 81 Me. 188 ( 1889 )

Emery, J.

This was a statute action to recover for personal injuries, alleged to have been caused by a defect in one of the defendant town’s roads. The alleged defect was a hole or depression in the edge of the travelled part of the road. The accident occurred June 1,1886. The plaintiff claimed that the hole existed, and was known to one Samuel G. Wood, at least twenty-four hours before May 1, 1886. The plaintiff also claimed that Wood was a surveyor of highways during April and to May 1, 1886, and in lawful charge of the district including the hole. No other town officer was shown to have had twenty-four hours actual notice of the hole, and if Wood was not a legal highway surveyor as above stated, the plaintiff concedes she has not proved notice, and cannot recover. As to the effect of the hole, the plaintiff’s evidence tended to show, that as she was turning a little to the right to pass a team, her horse came to the hole, and sheered in to the left, to avoid stepping into it, and thus brought her wagon in collision with the other team, throwing her out into the road. It did not appear that the horse was frightened by the appearance of the hole.

The verdict of the jury was for the plaintiff, and the case is now before the law court on a motion and various exceptions by the defendants. We will first consider the exceptions — ■

1. After Whitaker, a witness called by the plaintiff, had testified about the location, size and shape of the hole, the defendants asked him in cross-examination this question: “Taking the circumstances as they were, I ask you, if you had been driving the horse, if you think the accident would have happened?” The question was excluded.

It was said by this court in Branch v. Libbey, 78 Maine, 321, that, in these actions, evidence is not admissible to prove that a person, other than a party to the action, has either passed safely over the alleged defect, or has received an injury from it. If it be immaterial whether another person, in fact, met with an accident at the place, it must be immaterial whether another person thinks he would have met with one, even under the same circumstances. The exclusion of Whitaker’s opinion as to what might have happened to him, did not exclude any fact material to the defense.

2. A material question of law at the trial, was whether Samuel G. Wood was a surveyor of highways in the defendant town as late as April 30th, 1886. He had been elected, and had qualified as a surveyor of highways, at the annual town meeting in March, 1885, the year previous. His district included the place of the accident. At the next annual town meeting in March, 1886, the town did not choose any highway surveyors, nor did they appoint the selectmen such surveyors, but voted “that the selectmen be authorized to appoint one or more highway surveyors.”

No surveyors having been chosen or appointed by the town for the municipal year 1886-7, the only mode of obtaining such suryeyors was for the municipal officers to appoint them under E. S., c. 3, § 14, which provides that where towns at their annual meetings do not choose surveyors of highways nor appoint the municipal officers such surveyors, “the said municipal officers shall appoint surveyors of highways, whose term of office shall commence on the first day of May, and end on the last day of the following April.” No appointment in tins case could have been made to take effect earlier than May first, hence from the March town meeting in 1886, to May first following, there were no highway surveyors in Gouldsboro, unless those of 1885-6, including Wood, held over during that time, to May first. If they did not so hold over, then the roads in Gouldsboro, were without authoritative supervision or care during the month of April at least, in which month in tins state, roads are most liable to sudden injuries, and dangerous defects.

The language of the statutes may show an intention to precisely fix and limit the tenure of a municipal officer, so that on a fixed day, his authority will cease, even if an entire vacancy and absence of authority be the result. Unless such an intention appears, however, the better opinion is, that the officer should continue to exercise his functions until another person is qualified to assume them. As the natural law is said to abhor a vacuum in physics, the municipal law may be said to dislike a vacancy in authority. Dillon on Mun. Corp. § 220. Bath v. Reed, 78 Maine, 276, 280.

While the statute directs that the “other usual town officers” (in which class surveyors of highways are included), shall be chosen at the annual town meeting in March, it does not say that the term of office shall be one year from that meeting, nor one year from date of election, or appointment. On the other hand it provides that in case the town does not appoint highway surveyors the selectmen may, and that the term of the appointees shall not commence till May first following. In fixing May first for the beginning of the term, the legislature must have intended that the old officers should continue in authority until then. The judge, in accordance with these views, ruled upon the evidence that Wood continued in his office of surveyor of highways until May 1,1886. The ruling was correct.

8. Wood testified that he did not assume to act as highway surveyor after the annual meeting of March, 1886. The defendants claimed that one Tracy was appointed highway surveyor for that district by the municipal officers, April 19th, and that under that appointment he acted as surveyor from and after April 19th. They offered in evidence, in support of this claim, the original letter of appointment, dated April 19, 1886. It was excluded by the judge as immaterial in this case.

The claim, if fully established, could not avail anything for the defendants. No matter when he was appointed, Tracy could not be the legal surveyor till May first. A notice to the legal surveyor would bind the town, no matter who acted as surveyor. It was entirely immaterial in this case who was surveyor after May first, as the plaintiff conceded that if this defect did not'exist, or was not known to the legal surveyor at least twenty-four hours before May first, she could not recover.

4. The judge in the charge correctly stated the principles determining whether the road was safe and convenient, or defective and out of repair. The defendants upon this issue, asked for-the following further instructions: “Such a state of repair in a road as would free a town from exposure to indictment and conviction, would protect them also against a claim for damages for an injury sustained by an individual while traveling on the same.” The language of the request perhaps states an undeniable proposition, but it could not have aided the jury in determining the question before them. It shed no light upon the issue, and, the defendant’s case was not darkened by withholding it.

5. The defendants requested a ruling that the evidence did,' not prove twenty-four hours’ actual notice of the defect, to Wood as claimed by plaintiff. This was in effect, asking for a nonsuit. The refusal of such a request is never exceptionable. The remedy is by a motion for a new trial.

6. The judge instructed the jury, that the plaintiff must convince1 them that her horse was ordinarily kind, safe, and broken to travel, and, at the request of the defendants, gave this further instruction. “If at the time of the accident, the, hole was of such a character as to be safe for a horse to travel over, or-carriage wheels ..to pass over in traveling, without any danger, the fact that the horse was frightened at its appearance, would not render the defendants liable for any injury occurring on that ground.” The defendants then requested the following further instruction: “The town cannot be liable unless the object of fright presents an appearance that would be likely to frighten ordinary horses, nor unless the appearance of the object is such that it should reasonably be expected by the town, that it naturally might have that effect, nor unless the horse was at least an ordinarily kind, gentle and safe animal, and well broken for traveling on our public roads.”

The pith of this request was sufficiently stated in the instructions given. A judge is not bound to restate or elaborate a principle or rule once correctly stated. Elaboration and illustration are discretionary.

The Motion: We have considered and discussed the evidence and the instructions, to ascertain whether the verdict should be set aside as against the evidence. The judge strongly stated the propositions to be established by the plaintiff, and we find some .evidence in support of each. Although we might differ from the jury on some of the issues, the evidence does not produce a conviction that the jury were unquestionably wrong. The defend.ant’s main contention was that the evidence did not prove twenty-four hours’ actual notice of the defect, to Wood prior to May first.

Two witnesses testified that the hole was visible on the edge ■of the travelled part of the road, from the middle to the last of April. It appeared that Wood during that time, and up to May .first passed over the road, by and near the hole, several times •daily. He had been, and was highway surveyor, in charge of that-^district. There is some presumption that he was on the lookout for defects. He himself said that he probably saw the Trole as soon as it appeared, while he denies that it appeared before May first. This evidence might induce a belief that Wood knew of the hole, twenty-four hours before May first.

Motions and exceptions overruled.

Peters, C. J., Daneorth, Libbey, Foster and Haskell, JJ., concurred.