Brownell v. Troy & Boston Railroad , 55 Vt. 218 ( 1882 )

The opinion of the court was delivered by

Royce, Oh. J.

When the accident for which he claims to recover happpened to the plaintiff, he was travelling upon a public highway in the town of Pownal. When the defendant constructed its railroad in said town, in 1857, it occupied for its road-bed what had been a public highway for more than sixty years, and it was thereby crowded easterly ; and the highway that was thus crowded easterly was the one upon which the plaintiff was travelling at the time of his injury. There was no evidence that said highway had ever been laid out, but it did appear that it had'been used as a public highway since 1857. The defendant company became the owner of the land contiguous to this highway in 1876, and while occupying it the plaintiff’s evidence tended to show that it placed the obstructions upon and so near to it that it was rendered unsafe, and that such obstructions were the proximate cause of the injury he sustained.

The defendant in the court below requested the court to charge that to entitle the plaintiff to recover he must prove that the obstructions complained of were within the surveyed limits of the highway; that where land has been dedicated for a highway the right of the travelling public to use it for travel is confined to the actual track made by such travelling public, and no margin exists. While that may be true as defining and limiting the right of user, and that as between the adjoining land owners and a traveller no margin exists that the traveller has the right to enter upon or use, it does not follow that such land owners have the right to so use such margins as to endanger the safety of a traveller while he is travelling in the track which the public have the right to travel upon.

The court complied with the request as far as the defendant was entitled to have it complied with, and in its charge upon the subject of the request to which exception was taken, we find no error. The court further charged that to entitle the plaintiff to recover it must be found that the obstructions complained of were upon the highway that was used by the public at that time, and the jury must have' so found. It is claimed in argument that there was no evidence to support such a finding ; that question should have been presented in the County Court and before judgment on the verdict. This court cannot-assume that there was no such evidence.

In the cross-examination of one of the selectmen of Pownal, who was a witness called by the plaintiff, he testified that he, with another of the selectmen, by request of one Robinson, who was the wood agent of the defendant, went to see the plaintiff and ascertain what he would settle the claim that is in question in this suit for, and obtained his terms and reported them to Robinson. Robinson’s agency and connection with the subject-matter in controversy were thus brought into the case by the defendant. Robinson was then called as .a witness by the defendant, and denied having any such conversation as the selectman had testified to, and said he had no authority to request anyone’to go and see the plaintiff ; and, on cross-examination, that he did not assume any such authority. The plaintiff was then allowed, against the objection and exception of the defendant, to show that at said interview Robinson gave them to understand that he represented the defendant. What transpired at that interview was only material as tending to show an acknowledgment of liability, and to be prejudicial to the defendant it should have been shown that Robinson had authority to act for the defendant. No such authority could be presumed from the fact that he was the defendant’s wood agent, and no other authority or agency seems to have been shown! The presumption is that the court gave the jury proper directions as to the use to be made of the evidence concerning what had transpired at that interview, as they might have found it to have been, and with such instructions it is not easy to see how the defendant could have been prejudiced if they did not find it as the plaintiff’s evidence tended to show.

There was a question of veracity between the plaintiff’s witnesses and Robinson. Robinson denied having made any such proposition as the plaintiff’s witnesses had testified to, and as confirmatory of his denial, denied having authority to make it, or that he assumed to have authority. . It would be more probable that he did make the proposition if he assumed that he had the right to mate it than it would be if he made no such assumption, and as affecting the veracity of the witnesses who had testified concerning it the testimony was admissible.

The judgment is affirmed.