Farnsworth v. Town of Mount Holly , 63 Vt. 293 ( 1891 )

The opinion of the court was delivered by

THOMPSON, J.

The plaintiff offered in evidence the following notice to defendant town:

“Rutland, Vt., Sept. 7, 1889.

W. B. Hoskison, Esq., of Board of Selectmen for Mt. Holly, Healdville, Vt.:

Dear Sir : On Monday, Sept. 4, 1889, while returning from Ludlow my horses broke through the plank culvert between Mr. L. Hoar’s house and the house just beyond towards Mt. Holly P. O. Both of them went through and both of them were more or less injured, and both lame. The gray horse’s legs are swollen and sore, and he is quite lame, but I think will come out of it soon. The black mare strained her hock and is some lame and her hock is enlarged; I am afraid it will not be quite right again, which result would interfere to quite an extent with her value. You may consider this as a notice that I shall claim damages, but I do not know how much yet. I notified a man working on road of the condition of the culvert, i. e., that it was unsafe. If you are up this way soon please call and see me. •

Yery resp’y,

G. H. FARNSWORTH, V. S.”

The court excluded this notice upon the ground that it was not in compliance with the statute, to which ruling, plaintiff excepted. No. 13, s. 4 St. 1882, provides that no action shall be maintained against a town for injuries received or damage sustained through the insufficiency of a bridge, culvert or sluice, unless notice is first given in writing, signed by7 the party so injured or claiming damage, to one or more of the selectmen of the town in which the bridge, culvert or sluice is' situated, within twenty days of the time of the occurrence of such injury or damage, stating the time when and the place where the injury was received, and pointing out in what respect the bridge, culvert or sluice was insufficient or out of repair. This notice neither states in what respect the culvert' was insufficient or out of repair, nor that it was in the defendant town, nor that the plaintiff at the time of the alleged injury to his horses, was traveling over any highway in defendant town which it was bound by law to keep in repair, nor that said culvert was in such a highway. For its failure to so state, it is clearly insufficient, and the ruling of the court below was correct. To hold otherwise would in effect repeal the statute and overrule the former decisions of this court on this subject. Bartlett v. Cabot, 54 Vt. 242; White v. Stowe, 54 Vt. 510.

Judgment that the notice is insufficient affirmed, and cause remanded.