Knox v. Town of Wheelock , 56 Vt. 191 ( 1883 )

The opinion of the court was delivered 'by

Boyoe, Ch. J.

The notice of the defect in the bridge was sufficiently definite and certain. It does not appear that the plaintiff knew of the hole in the plank through which his horse stepped until after he had given the notice. He was justified in believing that the hole was made by the weight of his horse; and hence, he properly described the defect as being such a condition of the bridge that it would not sustain the weight of his horse. He gave as particular a description of the defect as he was capable of doing, and it does not appear that the town was misled by the description given. There was no error- in admitting evidence as to the condition of the plank adjoining the one through which the horse stepped, for the purpose indicated; and the jury were properly instructed as to the use to be made of it. The injuries -that the plaintiff claimed to have sustained were sufficiently described. The parts of his body that he claimed were injured were specially mentioned; and there is nothing to show but what the effects of the injuries were described as far as lie was then able to describe them. The injuries recovered for were not then patent, but were subsequently developed, and were occasioned by the injuries described; and the case falls within the rule established in Perry v. Putney, 52 Vt. 533, and Reynolds v. Burlington, 52 Vt. 300. The exceptions taken to the admission of evidence were none of them well taken. The answer of Barber, on his cross-examination, that he heard after-wards, and thought on the same day that the accident happened, that the plaintiff had been thrown off from a hearse, had no tendency to show whether he had been thrown off or not; and although it was hearsay evidence, it was not prejudicial to the defendant, it is unnecessary to decide whether the question taken in connection with his testimony in chief was permissible or not. Dr. Brooks testified that upon his examination of the plaintiff he found no indications then existing of internal piles; and was asked if ho did not say at the time of the examination that there were no indications of piles, and he replied that there were no indications of internal piles. Dr. Browne, who was a witness and participated in the examination testified to by Dr. Brooks, was asked on cross-examination if at the time of the examination Dr. Brooks did not announce that there was no evidence of piles. His answer was that Dr. Brooks said that there was no internal evidence of piles, thus corroborating the evidence given by Dr. Brooks. If the question 'put to Dr. Browne had been put for the purpose of and the answer given to it had .tended to impeach Dr. Brooks, inasmuch as he was the defendant’s witness, it would have been error to have admitted it; but the answer given had no such tendency, and hence there was no error. Dr. Bullard made an examination of the plaintiff in 1879-80, and during the trial, and was permitted to testify that he did not think his symptoms, as a whole, that he complaiued of in 1879 were inconsistent with his symptoms at his last examination. Dr. Bullard was testifying as to his personal observations and as an expert, and it is obvious that the idea he intended to convey and did convey was that lie did not discover any perceptible change from the first examination to the last. The enquiry made of the doctor as to how well he was satisfied that the plaintiff was suffering from nervous injury was objectionable in form, in assuming that he was thus suffering; but the answer given did not prejudice the defendant, for it did not tend to show that there was any such suffering. ' There was no error in the admission of the witness, Gray, ,as to the conversation between the plaintiff and Dr. Stiles; it was admissible as tending to impeach Dr. Stiles, who had in substance denied having had any such conversation as the witness testified to having heard.

The judgment is affirmed.