Fletcher v. Town of Barnet , 43 Vt. 192 ( 1870 )

The opinion of the court was delivered by

Peck, J.

The legal propositions involved in the charge of the county court have been too long settled and acted upon in this State, both in principle and in their application, as evidenced and illustrated by the reported decisions of the supreme court in actions of this character, to require, on the part of the court, an argument or restatement of the reasons in their support, or to justify the court in overturning principles so thoroughly and deliberately established, and so often and so uniformly re-affirmed. Nor is it necessary to spend any time in discussing the particular ground of defense insisted on in this case in opposition to those principles, as the same has been so often urged upon the court, and as uniformly been repudiated as unsound, and as inconsistent with well-established principles. The statute imposes on towns, severally, the duty of keeping their highways in good and sufficient repair at all seasons of the year, and gives a right of action against the town in favor of a party who sustains special damage by means of the insufficiency or want of repair of such highway. Law and justice require, that where one party, by his wrongful act or neglect, causes an injury to the other, unaided by the fault or neglect of such injured party, the party in the'wrong should bear the loss. The rule established in this class of actions against towns, and embracéd in the charge of the court in this case, is but the application of this principle. If this were an action in favor of this plaintiff against an individual for a collision on the highway, and it should, appear that the defendant carelessly and negligently drove against the plaintiff’s gig and broke it, and that no fault or negligence of the plaintiff contributed to the accident or injury, would it occur to a lawyer, or any one else, that the fact that a secret defect in the plaintiff’s gig, unknown to the plaintiff, and which, in the exercise of common care and prudence, would not be discovered, contributed to the injury, would constitute a defense to the action, even if such secret defect were such as, if known, would have rendered it imprudent to drive with the gig-on the highway ? Such defense could never prevail. The same rule that applies to an individual thus causing an injury, should apply to a town whose fault causes the same injury.

Judgment affirmed.