Hodge v. Town of Bennington , 43 Vt. 450 ( 1871 )

The opinion of the court was delivered by

Bedfield, J.

This is an action on the case to recover damage to horse, wagon and harness, by reason of the insufficiency of a highway in the town of Bennington.

The declaration alleges, in one count, that a section of said highway, viz., “from the Hailaway Corners, so called, to James H. Chapin’s place, so called,” was insufficient and in want of repair, and that “ through the mere insufficiency and want of repair” of said section of the highway, plaintiff’s horse was killed, his wagon destroyed, and harness injured.

The case disclosed, in proof, that the axle of the plaintiff’s wagon broke, and that he was thereby thrown from the wagon, when the horse escaped from his control and ran some twenty rods, overtook another team, diverged into the ditch, and was then thrown and killed. The fact is disclosed that the axle was unsound and unsafe ; but the defect was unknown to the plaintiff, and the jury have determined that the plaintiff was without fault, either in the management of his team, or as to the condition of the wagon. The jury have also established the fact that the highway was “ insufficient and out of repair,” both at the point where the axle broke, and where the horse was killed ; and both points are in the section of the highway alleged in the declaration to have been insufficient.

I. The defendant claims that, there being but one count .in the declaration, “ the force of that was exhausted in its application to the broken axle,” and its necessary consequence; or that the plaintiff should have been required to make an election between the two points, and been confined to one.

When the subject matter and causes of action are separate and divisible, and the declaration is single, and in one count, the plaintiff cannot duplicate the causes of action, and it would be error, after he had given evidence of one, to allow him to attempt to prove another. And if two causes of action should become disclosed by evidence, the plaintiff should be required to elect for whieh he would go. But there are many cases, where the cause of action is single, and essentially one occurrence, and one transaction, yet made up of parts, and embracing many incidents. An assault and battery is single, and one assault, though made up of altercation, menace, blows, flight, pursuit, the use of missthes, the pistol and the knife, in different places and at different times. If, it be one transaction, there is no duplicity in making the proper allegations in one count. In this case the plaintiff alleges, in one count, a section of the highway to have been insufficient, and both the point where the axle was broken, and where the horse was killed, were within the section alleged to have been insufficient. It is not & point, but a line, the whole of which is alleged to have been out of repair; and it was the continuous insufficiency of this line, or section of road, that caused the injury, and brought this mischief upon the plaintiff. A traveler may break his harness or carriage in a deep rut in the highway, and the horse thereby become restive, and plunge forward against a rock, and there overturn his carriage, and the driver be dragged against another rock, and his arm broken ; hence the horse escapes, and horse and carriage are destroyed. In such case there were three separate and distinct points of the highway that were insufficient, and each has contributed in degree to the injury, yet it is one transaction, and one cause.and ground of action.

In this case the axle was broken, the plaintiff thrown from the carriage, the horse thereby became startled, and ran along the alleged insufficient road for some twenty rods, plunged into the ditch and was killed. Had all this occurred within the space of five rods, and within the period of five minutes, and the five rods of highway were found insufficient, and such insufficiency, for the whole space, contributed to the destruction of the horse and carriage, we discover no duplicity if the pleader should embrace all in one count, as one and single cause of action; and the principle is the same if the section of insufficient road is extended to twenty rods.

II. Upon another ground, as we think, the admission of evidence of the insufficiency of the road at the point where the horse was killed is no ground for reversing the judgment.

The jury have found that the horse was killed by reason of the insufficiency of the road where the axle broke ; and hence the insufficiency of the road at the point where the horse was killed became immaterial. When evidence, against objections, is improperly admitted, it has been held error, though the court instruct the jury to disregard it where there is a general verdict, and it cannot be determined whether the jury were influenced by such evidence or not. Such was the intimation of Williams, C. J., in Allen v. Hancock, 16 Vt., 233, and the case there cited, 15 Johns., 239. But when the issues in'a case are divisible and distinct, as when the want of a stamp or seal, and payment, are separate issues, and the jury have found, by their verdict, the debt paid, then evidence improperly admitted, against objection, on the other issue, becomes immaterial, and is no ground for reversing the judgment.

III. The defendant claims that there was error in the charge of the court in reference to the defective condition of the axle, and that the charge does not fairly and fully meet the defendant’s requests.

The axle was nearly severed by an old crack, and, clearly, was unsafe for use upon the road ; but this was unknown to the plaintiff. ' The court instructed the jury “ that it was the duty of the plaintiff to use such care about the safety of the horse, the soundness and sufficiency of the wagon, and the manner of driving, as reasonably prudent men commonly used about their own affairs of like importance under like circumstances ; that if the plaintiff failed to use such care about the wagon-axle, or about anything connected with the accident, and the want of such care, in any degree, contributed to the accident, he cannot recover.” Were these questions under discussion for the first time in this state at this time, very good reasons could be given that a traveler who ventures upon the highway with an unsafe horse, a defective carriage or harness, takes that risk upon himself; and if he thereby suffers injury, though innocent, it is his misfortune, which he cannot cast upon the town. Such is the well-established rule in Massachusetts. Murdock v. Warwick, 4 Gray, 178. But there has been a long and unbroken line of decisions in this state, that “ if the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the insufficiency of the road, conspiring with some accidental cause, the defendants are liable.” Hunt and wife v. Pownal, 9 Vt., 411; or, as was comprehensively stated, in Kelsey v. Glover, 15 do., 714, by Royce, J.: “It has long been considered and repeatedly adjudged, that a duty does exist which binds the town or corporation to provide reasonable security in reference to such accidents as may be expected to happen.”

The court charged in this case that it was the duty of the town to keep the road in good and sufficient repair, with reference to the kind and amount of travel for which it was used, and for such teams and carriages as might reasonably be expected to be used by persons traveling the road,” and that “ the plaintiff could not recover unless the road was insufficient, and the insufficiency of the road caused the injury to the plaintiff, without any fault on his part,” and he was required to use reasonable diligence and care as to the safe condition of his wagon. Accidents occur from an infinite variety of causes, and combine with defective roads to work injury to travelers in various forms. Carriages and harnesses are unsafe from original but latent defects in construction, or from the working of latent causes, which the most careful and vigilant inspection cannot always detect. And travelers have the right to require, as was settled in Kelsey v. Glover, “ that towns shall build and repair their roads in such manner that they will be reasonably ,safe for the amount and kind of travel which might fairly be expected on them, and to enable travelers to be reasonably safe from the consequences of such accidents as might be justly expected occasionally to occur on such roads.”’ Such was the charge to the jury in that case, which was fully sustained by the supreme court.

We feel no duty or disposition to discuss the propriety of these decisions. We think it far better that the law on the subject so long established should remain undisturbed, than that it fluctuate to meet new and changing theories, however ingeniously propounded.

The judgment of the county court is affirmed.