Clark v. Town of Corinth , 41 Vt. 449 ( 1868 )

The opinion of the court was delivered by

Steele, J.

It is agreed that the plaintiff while traveling over the defendants’ road met with the accident and suffered the injury he complains of and that the accident was occasioned by the dangerous condition of the road which was caused by a suddén freshet. The true issues in the county court, as the case presented itself upon the evidence, wore, first, was the town in fault for not having' put the road in repair after the freshet and before the accident; and, secondly, did a want of ordinary prudence on the part of the plaintiff contribute to cause the accident.

I. The rules of law applicable to the first issue were settled when this case was heard at the Orange term of the supreme court in March, 1866, upon exceptions reserved at a former jury trial. That decision has not been reported, but its grounds were briefly stated in writing by Kellogg, J., and that statement, which was left with the clerk, we now have before us. It is as •follows: “The charge to the jury required the jury to find that the highway surveyor was in fault if they should find that two. men with a yoke of oxen could have repaired the road in two or three hours, so as to make it passable; but we think this was not the correct test upon this part of the case. The question whether the surveyor was in fault or not depended we think on the question whether he (the surveyor) by diligently using the means at his command or within his reach, could have put a force immediately upon the road, which was competent to make the necessary repairs after the injury to the road and before the accident happened; or, in other words, whether the surveyor could, with the means at his control, have made the repairs within the time mentioned, and not whether two men and a yoke of oxen could have made them within the same time.” Eor the error in this respect, the cause was remanded for a new trial. The new trial has been had and. exceptions have been again saved to the charge of the court upon this as well as upon the other branch of the case. The instructions of the court to the jury upon this branch of the case were, it must be conceded, in most respects, in strict accordance with the views expressed by the supreme court at the former hearing. The county court properly recognized the fact that under such-circumstances as this case developed, the surveyor would not be put upon his diligence to make the repairs until he had either knowledge or notice that the road had been injured so as to re- - quire repairs, it not being claimed that the freshet was itself so extraordinary as to amount to a notice that the road would need repairs, or that the dangerous condition of the road had existed long enough to charge the town officers with fault in not having discovered its condition without notice. The substance of the charge upon this subject was, that after the surveyor had notice of" the unsafe condition of the road, it was his duty to proceed “ immediately as soon as practicable” to repair it “ with the force and means at his immediate command and at his control,” and that if by so doing he could have put the road in a reasonably safe condition for travel before the time when the plaintiff passed over it, the town would be liable for the plaintiff’s injury unless the, plaintiff failed to make out that the happening of the accident, was in no part the result of his' own want of ordinary prudence. So far the ruling of the county court was, we think, such as the case required. It is true, as remarked by the judge in that court, that emergencies might arise which would excuse the surveyor • from proceeding immediately to making repairs, but no such emergency was shown in this case. It is not claimed that he would bo excused from making the repairs in order to finish planting his potatoes. The only other excuse urged is that the work could not have been completed that day, and that he there- ■ fore thought it politic to delay commencing the work until the next. But the jury have found that the work could have been completed on that day; that the surveyor with the means at. his command might, after the notice and before six o’clock in the afternoon of that day, that being the hour when the accident . occurred, have put the road in a reasonably safe condition. The verdict of the jury upon the charge as given, establishes . that tliis excuse, that the work could not be completed that day, was not true in fact, because the plaintiff was suffered to recover only upon the ground that the repairs might have been completed before the accident, and the accident occurred that day. There would be no error therefore on this point, even if such an excuse for delay, if true, would be sufficient. We have no hesitation, however, in saying that the mere fact that the repairs could not have been completed on the same day the notice was given, whether it was given in the morning as the plaintiff claimed, or not until noon as the defendant claimed, would not alone' be enough to justify the surveyor in waiting until the following day to commence what the statute requires to be done forthwith. It is quite easy to conceive of injuries to a highway or to a bridge of such a nature as would justify a surveyor, after first fencing up the road, in delaying the actual commencement of repairs for more than half a day. That time might be needful to prepare to work to advantage. But it would be very dangerous for the court to attempt to establish any rule limiting or qualifying the immediate duty imposed by the statute upon the officer of the town. The language of the statutes (Gen. Sts., 195, § 18,) should, of course, receive a reasonable construction, and such a construction we think was given when, the court told the jury that the repairs should be “ made immediately as soon as practicable.” The fact that this was a “ neighborhood road ” and not so much traveled as a great public thoroughfare, does not at all exempt it from the operation of the statute. The lack of promptness might be more disastrous in one case than in the other, but in either case the probable consequences of delay are so serious that the surveyor should proceed immediately to restore the road to a sáfe condition. The amount of travel the road accommodates is always a proper element of consideration upon the question of what is a condition of. reasonable safety, but a sudden injury, when it renders any public highway dangerous for travel, should be repaired as soon as practicable. Upon the question whether the surveyor-had means at his command to complete the repairs before the accident, the court very properly called the attention of the jury to the means which the law places in his control by giving him authority to call out the inhabitants to aid him, and he read them the section of the statute relating to that subject. It is urged that in the absence of any explanation from the court, the jury would be apt to understand the statute as it reads, and thus interpret it with too much literal strictness. Whatever danger there might be in this respect, was, we think, effectually prevented by the ruling of the court that the work was to be done as soon as practicable. It cannot be urged that the statute was not to be considered on this question by reason of any impossibility of giving the six hours notice,' because if the jury found the notice was given to the surveyor in the morning, he could have given six hours warning and still have had aid from the inhabitants for nearly half a day. We find, therefore, no error upon the first branch of the case.

II. The questions upon the branch .of the case relating to the plaintiff’s prudence, arise upon the legal effect of the information as to the condition of the road which was conveyed to the plaintiff before the accident, assuming that the information was such as the plaintiff claimed it was. That information came from the highway surveyor. The giving of it was not, however, such an official act as to make the town in any way responsible for its correctness. It was not in the power of the surveyor, if he had attempted it, to make any statements to travelers that the road was safe, as agent of the town. The only importance of the fact that the information came from the surveyor is in the fact that it would be less imprudent for .the plaintiff to rely upon information from a party whose business it was to know about the road, than upon information from a person whose knowledge upon the subject might be merely casual. The county court gave it tío importance beyond this. The plaintiff was informed that the road was dangerous at the culvert. If, after this, he had received an injury there by an attempt to pass the road, he probably could have made no complaint of the town. In traveling over a place he knew to be thus dangerous he took the risk upon himself. But he passed the culvert safely. The same information which warned him of danger at and near the culvert, assured him if he could pass there he would have no trouble beyond. In passing beyond he met with the accident he complains of. Suppose no information had been given the plaintiff and he had managed to pass the culvert safely, the jury might have thought that ordinary prudence required him, on finding so bad a place there, to venture no further; but having been informed by a person on whom he might reasonably rely that, if he could get by that place ho would have no further trouble, they might well conclude that it was not imprudence for him to proceed. The only effect, therefore, of this information,. so far as this injury ivas concerned, was to lessen the force of the warning which the danger at the culvert would naturally give, and could only bo weighed by the jury in the plaintiff’s iavor upon the question of whether he was in the exercise of ordinary prudence in traveling beyond the culvert. This wo understand to be precisely the effect which the county court gave this evidence, if the jury should find the information was such as the plaintiff claimed, and it is upon the plaintiff’s testimony that this point is here made. The fact that the plaintiff was notified of the danger he escaped at the culvert, could not prejudice his claim for damage for an injury beyond there, at a point where he had notice from precisely the same source that he could pass safely.

Judgment affirmed.